



H 







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CQEmiGHT DEPOSm 







































CITIZEN OR SUBJECT? 





CITIZEN OR SUBJECT? 


BY 

FRANCIS X. HENNESSY 

OF THE NEW YORK BAR 



. that this nation, under God, shall have a new 
birth of freedom; and that government of the people, 
by the people, for the people, shall not perish from 
the earth/' 

> 

> 

> ^ > 

> 3 1 


NEW YORK 

E. R DUTTON & COMPANY 

681 Fifth Avenue 







Copyright, 1923 
By E. P. Dutton & Company 


All Rights Reserved 




PRINTED IN THE UNITED 
STATES OF AlaERICA 


FED -7 1924 

©C1A7G503'5 

I 



AUTHOR’S NOTE 


Quotations from the Constitution of the United States are 
from the “Literal Print,” Government Printing Office, Wash¬ 
ington, D. C., 1920. 

The abbreviation “Ell. Deb.” refers to Elliot’s Debates, 2nd 
Edition, 5 vols., J. B. Lippincott & Co., Philadelphia, 1866. 

The “Federalist” is quoted from the Lodge Edition, G. P. 
Putnam’s Sons, New York, 1894. 

Wherever italics or capitals are used in a quotation and not 
directly stated to be those of the original author, they are the 
italics and capitals of the present writer. 

Where the present writer interpolates his own words in a 
quotation, they are included in square brackets. 



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PREFACE 


T\yr ANY Americans are interested in the Eighteenth 
Amendment. Millions are interested in the 
American citizen. 

It seems not to be known that the existence of one 
flatly denies the existence of the other. This is not 
theory. It Is plain statement of a very simple fact. If 
there Is an American citizen, the Amendment never 
entered the Constitution. On the contrary, If the 
Amendment Is In the Constitution, there never has been 
an America or an American citizen. 

Throughout this book the nation of free men is 
called “America.” This Is done to distinguish the na¬ 
tion from the federation of states already existing and 
known as the United States, when the whole American 
people created the nation and continued the federation 
as a subordinate part of one system of government. 
The federation of states was proposed in 1777 and 
had complete existence In 1781. .The nation of men 
was created In 1788. 

On January 14, 1922, there was opened at Wil¬ 
liamsburg, Virginia, the Marshall-Wythe School of 
Government and Citizenship. Judge Alton B. Parker, 
former Chief Justice of the New York Court of Ap¬ 
peals and a former candidate for President, delivered 
the opening address on “American Constitutional Gov¬ 
ernment.” His eloquent address has since been made 
a public document and printed in the Congressional 

Record, In It, he warned us of the danger to America 

• • 

Vll 


Preface 


• • • 

Vlll 

from those who do not understand our form of gov¬ 
ernment and are coming here to destroy it. 

“As people of this class have been coming to us in 
large numbers from nearly every quarter of the globe, 
we must take up the task of so educating all classes of 
our vast population, as that they shall fully understand 
the importance of maintaining, in its integrity, our con¬ 
stitutional plan of government. They should be taught 
in the first instance, why it was that the people, in the 
formative period of our government, were bound to 
have, and did at last secure, a government which the 
people could control despite their legislatures, whether 
representing the states or the federal government.” 

The existence of the Eighteenth Amendment is 
based on the sheer assumption that we have not a 
government of that kind. By all who have discussed 
the Amendment, whether for or against it, one false 
assumption has been made. From that false assump¬ 
tion of all, the advocates of the Amendment have 
drawn their conclusion. On the conclusion is based the 
existence of the Amendment. The conclusion itself is 
the direct negation of the simplest and most important 
fact in America. Moreover, the conclusion itself 
means that the Americans, twelve years after they “did 
at last secure” the kind of government they “were 
bound to have” and of which Judge Parker spoke, 
voluntarily created a “government” of the opposite 
kind and made themselves its absolute “subjects.” 

And the conclusion is correct, if the premise, which 
is the false assumption of all, be true. 

Of course, the assumption is absolutely untrue. But 
no one has seen its simple and patent untruth. Where¬ 
fore, the first step in our education is for us to acquire 
knowledge of the plain fact that it is untrue. Because 


Preface 


IX 


our leaders do not know the fact, we must go to other 
teachers. 

By the common false assumption, the early Ameri¬ 
cans—who “did at last secure” the kind of government 
they “were bound to have”—are now charged with 
having committed the most monumental blunder in all 
history, a blunder which destroyed their entire achieve¬ 
ment. 

Rest assured I They did not commit that blunder. 
They themselves make that clear herein. In so doing, 
they teach us what, with Judge Parker, we agree that 
we all must know, if America and the American citizen 
are to remain. They are the best teachers in the world. 
They know what they teach because they did it. They 
do not weary or perplex us with theories or principles. 
Their teaching is the telling of simple facts. Best of 
all, they tell us in their own simple words, while they 
are talking to one another and engaged in the very 
accomplishment of the facts they teach. 

It is a mere incident of their teaching that they 
settle the plain fact that the supposed Eighteenth ‘• 
Amendment is not in the Constitution. 

It is our own candid belief that very few Americans 
will be found to prefer the existence of the Amendment 
to the existence of America itself. The early Ameri¬ 
cans make amazingly clear that there is no America 
and no American citizen if the Amendment is in the 
Constitution. 

The nation of men, which we call America, and the 
subordinate federation of states, which we call the 
United States, are bound together in one dual system. 
They have a common name, “The United States of 
America.” They have a common Constitution, with 
national Articles for the men and federal Articles for 


X 


Preface 


the states. They have a common government, national 
for the men and federal for the states. 

This is exactly the America of which Judge Parker 
spoke. We want to keep it. The early Americans, 
who made it, will enable us to keep it, if we listen to 
their teaching of the simple facts which they accom¬ 
plished. Such a result would be some credit to the 
supposed Eighteenth Amendment. Even those most 
opposed to it would be compelled to acknowledge that 
its brief imaginary existence awoke us all to our first 
real concept of what America, the nation of free men, 
really is. 

Francis X. Hennessy. 

342 Madison A venue ^ 

New York City. 

Aiarch \lth, 1923 . 


CONTENTS 


I. Subjects Become Citizens. Page 1 

The American must know what a citizen is—Otherwise he will not 
remain a citizen—If the American citizen exists, there is no 
Eighteenth Amendment—Americans of 1776 knew distinction be¬ 
tween “citizen” and “subject”—While legally “subjects,” they had 
governed themselves as “citizens”—Attempt to govern them as 
“subjects” causes Revolution—Declare American concept, no gov¬ 
ernment interference with human liberty unless “citizens” grant 
government power—Make thirteen nations, each composed of citi¬ 
zens—Its “citizens,” in “conventions,” constitute each government 
by grant of power to interfere with human liberty—“Democracy” 
and “Republic” distinguished—Revolution to make American con¬ 
cept American law. 

II. The State Governments Form a Union of States 

Page 17 

Revolution continues—Thirteen nations form league or federation of 
states—Members of federation act through respective attorneys- 
in-fact, state legislatures—Legislatures constitute federal govern¬ 
ment and grant its federal powers to govern states—Distinction 
between legislatures* power to make federal Articles and citizens’ 
power to make national Articles under which men are governed 
—Citizens* power exercised in 1776 and legislatures’ power in 
1781—Revolution won, establishing American concept as Amer¬ 
ican law. 

III. Americans Find the Need of a Single Nation 

Page 25 

Federation of states unsatisfactory—General government, with only 
federal power to govern states, not able to secure what whole 
American people want—They learn need of general government 
with some enumerated national powers to govern men. 

IV. The Birth of the Nation. Page 29 

Philadelphia Convention assembles ostensibly to draft and propose 
purely federal Articles—It drafts and proposes a “Constitution” 
with both national and federal powers—First Article is the con¬ 
stitution of American national government because it grants all 
the enumerated powers to interfere with human liberty of Amer- 

xi 




XU 


Contents 


ican citizens—Fifth and Seventh Articles relate to the grant of 
national power, though neither grant it—Other four Articles 
neither grant nor relate to grant of national power—Fifth pre¬ 
scribes constitutional mode for its future grant by American citi¬ 
zens in “conventions”—Also prescribes constitutional mode for 
future grant of federal power by state legislatures—Philadelphia 
knows and decides that legislatures can never grant national 
power and Articles are sent to “conventions” of “citizens,” as in 
1776—Whole American people become a nation—American citi¬ 
zen first exists on June 21, 1788, when American citizens make 
their only grant of national powers—States and their citizens and 
constitutions and governments are made subordinate to citizens 
of America—^These facts entirely forgotten in 1917. 

V. The Consent of the Governed. Page 55 

Education of personal experience, from 1775 to 1790, accurately 
taught science of government to average American—It taught 
him that citizens only can grant government power to interfere 
with human liberty, though legislatures can grant federal power 
to govern states—Modern leaders lack that practical education 
and the accurate knowledge it taught the early American—Mod¬ 
ern average American has sensed something curious about mak¬ 
ing of Eighteenth Amendment—That he may understand what 
he senses and know why there is no such Amendment, must 
briefly consider the Constitution. 

VI. The Conventions Give the Consent. Page 64 

In conventions, whole American people themselves make Constitu¬ 
tion—“Felt and acknowledged by all” that legislatures could never 
make First Article because it constitutes government of men— 
From early American, modern American learns that grant of 
power to govern men is the constitution of the government of men 
—Because First Article grants of that kind are enumerated, Amer¬ 
ican government known as government of enumerated powers 
—Primal security to human freedom that citizens, not legisla¬ 
tures, grant all power of that kind—Because this primal security 
known to early Americans, their “conventions” insist that Consti¬ 
tution (Tenth Amendment) declare that every power of that 
kind not granted by American citizens remains with American 
citizens—Our own leaders have not known this security or under¬ 
stood that all ungranted powers of that kind were reserved by 
American citizens to themselves. 

VII. People or Government?—Conventions or 

Legislatures?. Page 80 

American nation a society of men like any other society of men— 
Herein called America to distinguish it from federation of united 
states which can make and are governed by federal parts of Con- 





Contents 


Xlll 

stitution—Like any society of men, America created by Its original 
human members in their “conventions”—Their knowledge of 
that fact becomes our knowledge—Supreme Court knows and 
states it—Citizen of America distinct from state citizen, though 
the same human being—Distinction vitally important, as Supreme 
Court explains—Only citizens of America can grant new power 
to interfere with their own human freedom—All original Ameri¬ 
can citizens know this—Many explain it to us, Daniel Webster 
vehemently and clearly. 


VIII. Philadelphia Answers “Conventions^ Not 

Legislatures”. Page 95 

Philadelphia knowledge and decision that legislatures of states, mem¬ 
bers of the federation, cannot make Articles which create gov¬ 
ernment power to interfere with freedom of men, members of 
the nation—The decision, based on knowledge of basic Ameri¬ 
can law, is embodied in Seventh Article and proposing Resolu¬ 
tion at Philadelphia in 1787—Human members of nation de¬ 
scribed as “conventions” in Seventh Article—Story of Seventh 
Article at Philadelphia—^Madison asks searching question of any 
American who thinks possible any other decision than the Phila¬ 
delphia decision—Now educated with the early Americans, we 
give the same answer as that of Philadelphia, while our leaders 
have given the opposite answer. 

IX. The Fifth Article Names Only “Conventions” 

Page 110 

Philadelphia story of Fifth Article—Relates to future grants of na¬ 
tional power by American citizens but makes no grant—Meaning 
to “conventions” must be meaning now—Madison writes it at 
Philadelphia, and he and many others from Philadelphia are in 
“conventions” who made it—Its Philadelphia story from May 29 
to September 10, 1787, one week before end of Convention. 


X. Ability of Legislatures Remembered. Page 115 

Fifth Article in last Philadelphia week—Philadelphia, previously 
concentrated on its own First Article, has so far forgotten that 
future Articles will probably be federal, which legislatures can 
make—Wherefore, legislatures not yet mentioned in tentative 
Fifth Article—Madison and Hamilton recall probability that all 
future Articles will be federal and suggest a Fifth Article which 
mentions “legislatures” as well as “conventions”—Full record of 
September 10, 1787, day of that Madison suggestion—Added men¬ 
tion no support for modern error that Fifth Article a “grant”— 
Moderns ignore that one supposed grantee is supposed grantor 
and that “grant” would make Americans “subjects”—In lan¬ 
guage of Fifth Article, Philadelphia finds no suggestion of mod- 




XIV 


Contents 


ern error and the Article, with its added mention of legisla¬ 
tures, is passed without discussion—Having no suggestion of a 
“grant,” it is known at Philadelphia to be constitutional mode of 
future exercise of the two existing but different abilities of 
“legislatures” and “conventions”—Madison, Wilson and Mar¬ 
shall on this fact—Full Philadelphia story of September 15,^ when 
Fifth Article finally considered—Defeat of Gerry’s motion to 
strike out “by conventions in three-fourths thereof”—Modern 
error of thinking and acting as if that motion had been carried. 


XI. Conventions Create Government of Men 

Page 141 

“Conventions” of Seventh Article, making Constitution, know same 
“conventions” of Fifth Article to be themselves, the American 
citizens—Americans, in “conventions,” with American concept 
that government exists solely to secure individual and his free¬ 
dom, read and make Fifth Article—Madison hits hard modern 
concept of Bolshevist Russian and Eighteenth Amendment Amer¬ 
ican that human beings are made for kings or legislatures or 
political entities—Conventions hear Madison explain Fifth Arti¬ 
cle as prescribing procedure in which “conventions” can again 
assemble constitutionally to exercise their power and in which 
“legislatures” may act constitutionally in making future federal 
Articles—Recognize its constitutional mode as exact Revolution¬ 
ary mode just followed by Madison and others at Philadelphia 
and that future Congress should do exactly what Philadelphia 
did and no more—Recognize Fifth Article settles how each “con¬ 
vention” vote shall count as one vote of American citizens and 
how many “convention” votes shall be necessary and sufficient to 
make a future Article which “conventions” of American citizens 
alone can make—Recognize words “in three-fourths thereof” after 
word “conventions” most important words in Fifth Article and 
a great security to individual liberty—Average American now 
sees why Eighteenth Amendment Tories seek escape from that 
security by asserting Constitution created supreme will independ¬ 
ent of American citizens, i.e., will of state legislatures. 


XII. Two Articles Name “Conventions”. Page 171 

From 1775 to 1789, all Americans aim to secure individual welfare— 
With this one aim, “conventions” continue to read Fifth Article 
and recognize statements of Fifth and Seventh, as to “conven¬ 
tions,” identical in nature—Recognize both ordain WHEN con¬ 
vention-made Articles, granting power to interfere with indi¬ 
vidual freedom, shall validly constitute government of American 
citizens—Recognize “conventions” of Seventh and Fifth as whole 
American people of Preamble—^Recall ability of legislatures to 
make federal Articles and know mention of “conventions” and 



Contents 


XV 


“legislatures” grants no power to either—State “legislatures” 
lesser reservee and “conventions” of American citizens most im¬ 
portant reservee in Tenth Amendment—“Conventions” recognize 
two exceptions in Fifth Article, not as exceptions from power 
granted therein, but as intentional refusal to provide a constitu¬ 
tional mode in which existing ability may be exercised to do what 
is mentioned in two exceptions—“Conventions” finish reading 
Fifth Article and, from its clear language, know it is not a grant 
of power but a constitutional mode for the exercise of either of 
two existing powers, one limited and the other unlimited. 


XIIL Conventions Know “Conventions” are 

“the People”. Page 180 

Americans, in their “conventions,” explain and support and oppose 
the proposed Articles—Whether for or against the Articles, their 
invariable and clear statements confirm the “convention” knowl¬ 
edge that the Fifth is not a grant of power either to themselves, 
“conventions,” or to the state “legislatures”—Conventions 

check Fifth Article mention of “legislatures” and “conventions” 
with statement that proposed constitution is “one federal and 
national constitution”—Henry insists that proposed Articles make 
the state legislatures weak, enervated and defenseless—“Abolish 
the state legislatures at once”—Wilson admits that the Articles 
take power from the state legislatures and give them no new 
power—“The diminution is necessary to the safety and pros¬ 
perity of the people”—Madison explains the importance of his 
words, “in three-fourths thereof,” after the word “conventions,” 
as requiring more than a mere majority of American citizens for 
new interference with individual liberty—Hamilton states his 
own conviction that amendments will be to the federal and not 
the national part of the Constitution and emphasizes the legal 
necessity that grants of national power must come from the peo¬ 
ple and not the legislatures—“Conventions” reluctant to give 
even the enumerated national powers of the First Article and 
insist on the Tenth Amendment declaration that all other power 
of that kind is reserved by themselves to themselves—“In their 
hands it remains secure. They can delegate it in such propor¬ 
tions, to such bodies, at such times, and under such limitations, 
as they think proper”—In 1907, the Supreme Court states, what 
the “conventions” knew, that all powers not granted in the First 
Article are reserved to the “conventions” of American citizens 
“and can be exercised only by them or on further grant from 
them”—The “conventions,” having secured the liberty of Amer¬ 
ican citizens from all government interference except under the 
First Article grants, end their great work. 



XVI 


Contents 


XIV. Seventeen Articles Respect Human Freedom 

Page 212 

Hamilton’s conviction, that all Amendments would be of the federal 
kind which legislatures can make, verified by the seventeen 
amendments prior to 1917—As Supreme Court has repeatedly 
held, the first ten Amendments merely declared what was already 
in Constitution—A relevant and important declaration in the 
Tenth is that the entire Constitution gives no power of any kind 
to state legislatures—Amazing modern Tory concept that these 
ten Amendments are an American Magna Charta or compact 
between a master government and its “subjects”—Madison and 
Supreme Court on the “impious doctrine” that Americans are 
“subjects”—Eleventh and Twelfth Amendments have naught to 
do with individual freedom—Thirteenth, Fourteenth and Fifteenth 
neither exercise nor create government .power to interfere with 
human liberty—On the contrary, their purpose and effect are to 
make human liberty universal—Sixteenth removes a federal limi¬ 
tation, in favor of the states, from a power the “conventions” 
gave to Congress—Seventeenth relates only to the election of 
Senators—When 1917 opens, Congress has no power to interfere 
with individual liberty of American citizens which Congress did 
not have in 1790—WThen 1917 opens, no legislatures, since July 
4, 1776, have dared to interfere with the individual liberty of the 
American citizens outside the First Article grants or have dared 
to attempt to create a new power so to interfere—When 1917 
opens, we have not become “subjects” but still are citizens of 
America. 

XV. The Exiled Tory About to Return. Page 231 

When 1917 begins, relation of American citizen to all governments 
in America and relations of governments to one another just 
the same as in 1790—American government can interfere with 
the American citizen on matters enumerated in the First Article 
—No other governments can interfere with him at all—The gov¬ 
ernment of each state can interfere with its own citizens, except 
as the American Constitution forbids, on matters in which the 
citizens of each state give their own government power to inter¬ 
fere—No government, either American government or state gov¬ 
ernment, can get any new power of that kind except directly 
from its own citizens—No government can get any power of 
that kind from other governments—New federal power of Amer¬ 
ican government can be granted by members of federation, the 
states, acting through their respective attorneys-in-fact, the state 
legislatures—State legislatures are powerless to govern or to 
create power to govern American citizen—In these respects, su¬ 
premacy of American citizens over all governments same in ’1917 
as in 1790—1917 leaders did not know, what 1790 average Amer¬ 
ican knew, that Revolution had ended forever Tory law that 
governments are master and Americans are “subjects.” 



Contents 


XVI1 


XVI. The Tory “Eighteenth Amendment”. . 239 

December, 1917, closing month of America’s first year in World War 
for human liberty—American citizens have but one government, 
Congress, which can interfere with their human liberty in any 
matter—Congress knows it cannot interfere by making the com¬ 
mand which is Section i of the Eighteenth Amendment—Amaz¬ 
ing Resolution in Senate that legislative governments of state 
citizens be asked directly to interfere with human liberty of 
American citizen in matter not enumerated in First Article— 
Resolution asks some state governments to give only American 
government a new enumerated power to interfere with freedom 
of American citizen, the first new power of that kind since June 
21, 1788—Some leaders question “wisdom” of Resolution—No 
leader questions power of any governments (except Congress in 
the enumerated First Article matters) to interfere with freedom 
of American citizen—No leader questions power of any or all 
governments to give a new enumerated power of that kind to 
the only American government or to any government—No leader 
knows that, in 1917 as in 1787 and in 1790, only the “conven¬ 
tions” of American citizens can make the command or the grant 
of power—House of Representatives adds absurdity to absurdity 
—Adds to Resolution that state governments, while interfering 
with liberty of American citizen and granting only American 
government first new enumerated power so to interfere, should 
also give themselves (the granting governments) the very power 
they assume to exercise over American citizens—Webb, explain¬ 
ing to the House his proposed change in Section 2 of the Amend¬ 
ment, states this to be the meaning and purpose of the change— 
Article IV contrasted with absurd modern error, as to meaning 
of Article V—That modern error is sole basis of Tory concept 
that any or all governments could make Articles like First 
Article or supposed Eighteenth Amendment—Article IV guaran¬ 
tees to citizens of each state that their state government shall be 
republican, getting from them its every power to interfere with 
their individual freedom—Senate Resolution asks state govern¬ 
ments, outside each state, to give each state government power 
to interfere with the freedom of its own citizens—Congress of 
1917 acted on assumption that Article V meant to enable Con¬ 
gress to suggest any desired breach of the guarantee in the 
closing words of Article IV. 

XVII. The Tory in the House. Page 254 

Despite our education with Americans from 1775 to 1790, in 1917, 
when Americans are at war for human liberty, the only Ameri¬ 
can government recognizes other governments (the state legisla- 
latures) as an omnipotent Parliament with all American citizens 
as “subjects”—Volstead Act is only statute in America, inter¬ 
fering with individual liberty, which does not even pretend to 
be founded on direct grant of power from its citizens to the gov- 



xvm 


Contents 


ernment wliicli enacted it—Webb, in the House, states, ^‘We 
thought it wise to give both the Congress and the several states” 
new power to command the American citizen on this matter not 
enumerated in the First Article—His tribute to the state gov¬ 
ernments, as master governments of American citizen, exactly 
the tribute paid by Lloyd George to the power of the Westminster 
Parliament over its “subjects”—Marshall, Hamilton, Madison, 
the Virginia Convention of 1788, the Supreme Court repeatedly 
and even in 1907, flatly deny the concept of Webb and the 1917 
Congress—Concept of latter merely repeats mistake of govern¬ 
ment counsel on which Supreme Court dwelt with emphasis in 
1907—Ignores most important factor in Tenth Amendment, “peo¬ 
ple” or “conventions”—From the early Americans, “Who but the 
people can delegate powers? What have the state governments 
to do with it?” and “How comes it, sir, that these state govern¬ 
ments dictate to their superiors—to the majesty of the people?” 
—Webb reads to the House a Fifth Article in which “conven¬ 
tions” does not appear—Madison tells Webb and all of his Tory 
concept, “These gentlemen must here be reminded of their error. 
They must be told that the ultimate authority resides in the peo¬ 
ple alone, and that it will not depend merely on the comparative 
ambition or address of the different governments, whether either, 
or which of them, will be able to enlarge its sphere of jurisdic¬ 
tion at the expense of the other”—Webb closes in the House with 
an eloquent appeal to every other follower of Mohammet. 

XVIII. The Tory in the Senate. Page 275 

Calm and sound reasoning of Federalist, advocating the real Con¬ 
stitution, contrasted with irrelevant personal abuse by those sup¬ 
porting the imaginary new Constitution—Latter, because facts 
and law make their Tory concept absurd, revive “impious doc¬ 
trine of Old World” that human beings were made for political 
entities and governments—Senator Sheppard and his eloquent 
claim that American citizens, like other machinery, must be 
kept in good condition for their government owner—His “dis¬ 
covery” that the states, political entities, made the Constitution 
of America, the nation of men—Story of America (from May 
29» 1787, to July, 1917) being a sealed book to him, he does 
not know that our Constitution is both federal and national— 
Supreme Court, in early days and in 1907, and Webster and 
Lincoln tell him his mistake—Not knowing the decision of Gettys¬ 
burg, recorded at Appomattox, he chooses between Lord North 
of 1775 and Calhoun and summons the latter to prove that the 
American people did not make their Constitution and its grant 
of enumerated power to interfere with their individual freedom 
—Jefferson, Pendleton, Webster and many other Americans cor¬ 
rect Sheppard’s error of fact—As the American people of 1776 
accomplished their successful Revolution against government, 
may it not be the thought of Sheppard and other Tories that the 
Eighteenth Amendment has been established by a successful rcvo- 



Contents 


XIX 


lution of government against the people—Marshall again tells 
us of the American day when the legal necessity “was felt and 
acknowledged by all,” that every power to interfere with human 
liberty must be derived from the people in their “conventions”— 
Acting on the Congress proposal of 1917, governments of state 
citizens command the American citizen and create a new gov¬ 
ernment power to interfere with his individual liberty—But no 
statesman has yet told us how or when, prior to 1917, we became 
“subjects.” 

XIX. Are We Citizens?. . Page 298 

Hamilton thinks it a prodigy that Americans, in “conventions,” vol¬ 
untarily constitute the enumerated First Article government pow¬ 
ers to interfere with their individual liberty—Marshall, in Su¬ 
preme Court, declares “conventions” to be the only manner in 
which they can act “safely, wisely and effectively” in constitut¬ 
ing government of themselves, by making such grants—When 
proposed 1917 first new grant of that kind is supposedly made, 
American people and their “conventions” are completely ignored 
—The proposers have a Fifth Article which does not mention 
“conventions”—The proposers have the old Tory concept, that 
the people are the assets of the state and that government is the 
state—Still trying to find out how and when we became “sub¬ 
jects,” we expect to get information from the litigations of 1920 
—We expect great counsel, on one side, to urge the facts we 
know—We fear that other great counsel will urge, in reply, 
some fact or facts which we have not been able to ascertain— 
We are certain that there is no Eighteenth Amendment, if the 
facts we have learned are all the facts—That we may listen 
intelligently to all the great counsel, we review some of the facts 
we have learned. 

XX. Lest We Forget.. Page 307 

“The important distinction so well understood in America, between a 
constitution established by the people and unalterable by the 
government and a law established by the government and alter¬ 
able by the government”—Our first glance at briefs of 1920 gives 
.us hope that some modern leaders have acquired the knowledge 
of Hamilton and his generation—We find, in one brief, in Mar¬ 
shall’s words, the Supreme Court statement of the fact that 
“conventions” of the people, not states or their governments, made 
the Constitution with its First Article grants of power to interfere 
with human liberty—^But this brief, to our amazement, is that of 
the foremost champion of the only other grant of that kind, the 
Eighteenth Amendment, a grant made entirely by government to 
government—In 1920, seven litigations argued and reported under 
the one title “The National Prohibition Cases”—Distinguished 
counsel appear for many clients, for the claimed omnipotent Par¬ 
liament of America, for the American government which we 




XX 


Contents 


used to know as our supreme government, for a few state gov¬ 
ernments who did not wish to be part of the omnipotent Parlia¬ 
ment, for those engaged in the lawful business of manufacturing, 
etc., the commodities named in the Eighteenth Amendment—Like 
the human right to breathe, such manufacture, etc., was not the 
privilege of a citizen—Both rights are among the human rights 
men have before they create nations and give governments power 
to interfere with some or all of their human rights—Citizens of 
America, giving their only American government its enumerated 
powers, gave it no power to interfere with the human right men¬ 
tioned in the new Amendment—Human rights never are privi¬ 
leges of citizens—Citizens establish government to protect existing 
human rights—Only “subjects” get any rights or privileges from 
government—All early Americans knew these primal truths— 
Neither the French aristocrats, before French Revolution, nor 
Tories of 1776 in England or America knew them—Eighteenth 
Amendment Tories do not know them—Madison (in 1789) and 
Supreme Court (in 1890) knew that commodities named in new 
Amendment are among those in which a human right “of traffic 
exists”—In litigations of 1920, no counsel appear on behalf of 
the human rights of American citizens—But we know that no 
decision of our own Supreme Court, established to secure our 
human rights, although the decision may settle disputes between 
other litigants, can change us from “citizens” into “subjects.” 


XXL Briefs Ignore the American Citizen_ Page 325 

No counsel knows all are discussing whether Americans, twelve years 
after 1776, voluntarily became “subjects”—Common concept of 
all that Fifth Article a “grant” of power to state governments 
(of state citizens) making them attorneys-in-fact for citizens of 
America—Discussion entirely as to extent of power “granted”— 
Eighteenth Amendment concept that Fifth Article “grant” made 
some governments of state citizens a supreme American Parlia¬ 
ment, unrestrained master of every human right of all American 
citizens—Opposing concept that the Fifth Article “grant” made 
those state governments a Parliament whose one limit is that it 
cannot interfere with the sovereignty of any political entity which 
is a state—Both concepts ignore supremacy of nation of men over 
federation of states—Both ignore dual nature of “one national 
and federal Constitution”—Both ignore “conventions” in Seventh 
and Fifth Articles as the citizens of the American nation—Both 
ignore that each state “legislature” is attorney-in-fact for the 
citizens of its own state and that no legislatures are (except 
Congress in enumerated matters) attorneys-in-fact for the citizens 
of America in any matter—Our facts, brought from our education 
with the early Americans, all ignored by all counsel in the litiga¬ 
tions—The Virginia Convention itself and Lee, Pinckney, Ham¬ 
ilton, Madison, Wilson, Iredell and others state what all counsel 
of 1920 entirely ignore. 


Contents 


XXI 


XXII. No Challenge to the Tory Concept. . .Vage 335 

Eighteenth Amendment rests on imaginary Fifth Article “grant” 
making the state governments of state citizens attorneys-in-fact 
for the citizens of America, empowered to give away all human 
rights of the citizens of America—“Grant” assumed in every 
brief—No brief recognizes that one supposed “grantee” is sup¬ 
posed “grantor”—Or that each of two supposed “grantees” was 
a competent maker of Articles (as proposed Articles were re¬ 
spectively federal or national) before and when the “conventions” 
made the Fifth Article—Or that Philadelphia Convention knew 
and held “conventions” existing ability competent to make any 
Article and state legislatures, existing ability incompetent ever to 
make Articles like First Article or Eighteenth Amendment—Or 
that Tenth Amendment declares no power given to state “legisla¬ 
tures,” while all ability to make national Articles “reserved” to 
“conventions”, of “the people” of America—No brief challenges 
sheer assumption of Fifth Article “grant” or supports assumption 
by any fact—Every brief, for or against Amendment, is based on 
the sheer assumption—No brief knows that enumerated powers of 
only American government to interfere with human freedom can 
be changed by no one save the citizens of America themselves in 
their “conventions”—Madison’s tribute to these “conventions” in 
which “free inhabitants” constitute new government power over 
themselves—Hamilton explains great danger to human liberty if 
“legislatures” or permanent government bodies could create such 
new government power—That knowledge of his generation con¬ 
firmed by story of government-made supposed Eighteenth Amend¬ 
ment—Our gratitude to that generation of men who (1776) made 
it and (1788) left it impossible that governments could create 
new government power to interfere with American human liberty— 
Our regret that modern leaders have not known this great and 
immutable protection to American liberty. 


XXIIL The Challenges That Failed. Page 350 

Supreme Court wisely writes no opinion in “National Prohibition 
Cases”—In each of four numbered paragraphs. Court states its 
own negation of one challenge made to new Amendment—All 
four challenges are negatived in seventeen lines of statement— 
First two challenges trifling and purely technical—Third chal¬ 
lenge based on rights of the citizens of some particular state— 
Fourth challenge to “extent” of Fifth Article “grant” of power 
by “conventions” to “conventions” and “legislatures”—This chal¬ 
lenge asserts “grant” which advocates of Eighteenth Amendment 
must and cannot prove—Court negative amazingly accurate—All 
counsel have argued incessantly about “extent” of power “granted” 
by Fifth Article—Court negatives in statement which speaks of 
power “reserved” in Fifth Article—Concept of “grant” disap¬ 
pears—Court knows what “conventions” knev/, when they made 
Fifth Article, when they insisted on Tenth Amendment Declara- 



XXll 


Contents 


tion expressly stating the distinct reservees of the two existing 
powers “reserved” in Fifth Article—Supreme Court of Marshall’s 
day knows it and Supreme Court of 1907 knows it—“Citizen or 
Subject?”—Eighteenth Amendment answers “Subject”—Real Con¬ 
stitution answers “Citizen”—“Conventions” insisted on plain state¬ 
ment of correct answer—Counsel of 1920 do not know it—Their 
four challenges make plain that fact—All challenges^ based on 
error that governments of state citizens are attorneys-in-fact for 
citizens of America—In Virginia Convention and in Supreme 
Court, Marshall explains that powers of state governments “pro¬ 
ceed not from the people of America” but from the citizens of each 
respective state—No counsel of 1920 knows this important fact. 

XXIV. Governments Claim Americans as Subjects 

Page 371 

Patrick Henry, opposing Constitution in the “conventions,” knows that 
it takes power from the state legislatures and gives them no 
power—All modern leaders “know” that it gives those legislatures 
great power as attorneys-in-fact for the citizens of America— 
Many modern leaders “know” that it makes those legislatures 
an omnipotent Parliament over the citizens of America—No mod¬ 
ern leaders remember 1781 and 1787 existing ability of the state 
legislatures to make federal Articles or Articles not creating 
government power to interfere with human liberty—Common 
modern concept that Fifth Article is “grant” to these “legisla¬ 
tures” and to the very “conventions” which made the Fifth Article 
—Leading brief, against Amendment, more than fifty times admits 
or asserts this imaginary and remarkable “grant”—Some extraor¬ 
dinary concepts of our American institutions in briefs—In a 
famous opinion, Marshall explains a fact and on it bases the 
entire decision of the Supreme Court—The fact itself is that the 
Constitution granted no power of any kind to the state legisla¬ 
tures—No brief knows or urges this fact or any of the facts we 
learned in the “conventions,” the facts on which we base our 
challenge to the Eighteenth Amendment concept that we are 
“subjects”—Briefs for the Amendment examined to find out why 
we are supposed to be “subjects”—Amazing claim that, when 
governments alone change the national part of the Constitution, 
Supreme Court has no power even to consider whether govern¬ 
ments in America can make a change in the enumerated powers 
given to their own government by the citizens of America—^Re¬ 
markable Tory concept that the number of Senators from each 
state is the only thing in America immune from government 
invasion, if enough governments combine—Indignation of Amer¬ 
ican citizen changes to mirth when he realizes this concept to be 
only basis of thought that he is a “subject” or that there is an 
Eighteenth Amendm^—American citizen, seeking to find (in the 
briefs for the Amendment) what happened, between 1907 and 
1917, to make^ him a “subject,” startled to hear the answer, 
“Nothing”—Citizen’s amusement increased on learning, in same 
briefs, that whole American people, in Constitution which cx- 


Contents xxiii 

pressly declares it gives no power to state governments, made 
those governments of state citizens irrevocable and omnipotent 
attorneys-in-fact for the citizens of America—Amusement in¬ 
creased by finding that main champion of Tory concept quotes 
Marshall’s Supreme Court story of the making of the Constitution, 
but omits, from the quotation, the paragraph in which Marshall 
points out that everyone knew why the “legislatures” could not 
make and only the “conventions” could make the national First 
Article, with its grant of enumerated power to interfere with 
human liberty—Curiosity added to mirth on finding this brief 
echo Madison’s own knowledge that his Fifth Article contains 
nothing but “procedural provisions,” while brief bases its entire 
contention on mere assertion that Fifth Article is greatest grant 
of power ever made by free men to government. 

XXV. Citizen or “Eighteenth Amendment”?. .Page 397 

Congress is only legislature with any power of attorney from the 
citizens of America—At very beginning and very end of original 
Constitution, citizens of America expressly so state—All briefs of 
1920 based on asserted assumption denying those two statements 
and insisting Fifth Article is “grant” to governments of state 
citizens—Briefs for new Amendment assert “grant” made govern¬ 
ments of state citizens omnipotent master of everything in America 
(including all human rights) save number of Senators from each 
state—On this Tory concept depends entirely existence of Eigh¬ 
teenth Amendment—Tory concept being absolute myth, Amend¬ 
ment disappears—Amusing to find Tory briefs for Amendment 
with American citations and quotations which annihilate Tory 
concept—Unconscious humor of Wheeler surpasses “Comic Black- 
stone”—Tory legions, fighting under crescent of Mohammet, claim 
to be American and Christian crusaders—Americans would have 
remained “subjects” if Parliament, passing the Stamp Act, had 
said: “You subjects must obey this command we make but, making 
it, we do not legislate”—“Statement” that citizens of America uni¬ 
versally demanded this sole Amendment which attempts to change 
the First Article enumerated powers—“Proof” that 4742 Tory 
members of governments of state citizens said “Yes” to the 
change—Jefferson and Madison tell us that concentration of all 
power in legislatures “is precisely the definition of despotic gov¬ 
ernment,” that 173 “despots would surely be as oppressive as 
one,” and that “an elective despotism was not the government we 
fought for”—Calhoun contended one state might defy supreme 
will of citizens of America—Tories for Amendment go far beyond 
doctrine finally repudiated by Gettysburg—On Tory concept that 
we are “subjects” of omnipotent government, assert that some 
governments of state citizens may dictate, in all matters of human 
right, what the citizens of America may and may not do—Echo 
from “conventions” which made Fifth Article, “How comes it, - 
sir, that these state governments dictate to their superiors, to the 
majesty of the people?” 


I 


xxiv Contents 

XXVL The American Citizen Will Remain. . .Page 416 

Supreme Court holds American people, “for most important purposes, 
chose to be one nation, with only one government of the First 
Article enumerated powers to interfere with human liberty— 
America, the nation of men, and United States, the subordinate 
federation of states—Tories for new Amendment must prove that 
American people, as one “important” purpose, meant that govern¬ 
ments of state citizens could interfere with every human right of 
American citizens—Reserved rights and powers of American citi¬ 
zens are entirely at their own direct disposal, for exercise or 
grant, “despite their legislatures, whether representing the states 
or the federal government”—American citizen must know this of 
his own knowledge or his human freedom will disappear— 
Emmett and Webster and their generation knew it—Madison 
writes Fifth Article and states exactly what it is to the “conven¬ 
tions” which made it—Hughes unable to begin his Tory argument 
for new Amendment without adding to that Madison statement 
what Madison pointedly did not say—Senate now about to repeat 
1917 blunder that governments of state citizens have aught to do 
with altering the national part of the American Constitution, 
which part is within the exclusive control of the citizens of 
America themselves:^“Conventions” are the people—“Legisla¬ 
tures” are governments—“Citizen or Subject?”—Supreme Court 
answer certain—Court’s history and traditions show American 
concept of Hamilton that this Court bulwark of American citizen 
against government usurpation of power to interfere with human 
liberty—'Webster forecast Court decision on new and Tory 
Amendment, answering “Citizen or Subject?”—All Americans 
once knew same correct answer to same question by Pendleton in 
Virginia Convention of 1788, “Who but the people can delegate 
power? What have the state governments to do with it?” 


APPENDICES 

I. The Original Constitution of the United States 

Page 445 

11. The Resolution Which Proposed the Constitu¬ 
tion TO the Conventions of the People of 


America . Page 458 

III. The! First Seventeen Amendments to the Con¬ 

stitution . Page 460 

IV. The Alleged Eighteenth Amendment Page 465 

V. The Nineteenth Amendment. Page 466 






CITIZEN OR SUBJECT? 




CITIZEN OR SUBJECT? 


CHAPTER I 

SUBJECTS BECOME CITIZENS 

T he average American of this generation does not 
understand what It means to be a citizen of Amer¬ 
ica. He does not know the relation of such a citizen 
to all governments in America. He does not know the* 
relations of those governments to one another. If 
this ignorance should continue, the citizen of America 
would disappear. The American would become again 
a subject, as he was when the year 1776 opened. 

The supposed Eighteenth Amendment is not in the 
Constitution unless the American already Is a subject. 

It is vital to every Individual Interest of the average 
American that he should know these things which he 
does not know. Happily for him, his ignorance Is not 
as that of the public leaders of his generation. Their 
concept of the American and his relation to govern¬ 
ments In America is one which contradicts the most 
definitely settled and clearly stated American law. On 
the other hand, the average American merely has a 
mind which Is a blank page In these matters. As a 
result. It is the greatest danger to his Individual Inter¬ 
est that their concept largely guides his attitude in 
public affairs of the utmost moment to him. 

The Americans of an earlier generation, who created 
the American nation of men and all governments in 
America, accurately knew the status of the American 

1 


2 Citizen or Subject? 

citizen and his relation to all governments. Their 
accurate knowledge was an Insistent thing which guided 
their every act as a people In the period between 1775 
and 1790, In which latter year the last of the Ameri¬ 
cans became citizens of America. Their knowledge 
came to them from their own personal experience In 
those fifteen years. They were a people, born subjects 
of government, who died citizens of a great nation and 
whose every government, in America, was their serv¬ 
ant. This great miracle they themselves had wrought 
In the fifteen years between 1775 and 1790. Their 
greatest achievement, as the discerning mind has al¬ 
ways realized. Is what they did In the last four of those 
momentous years. They brought to its doing their 
valuable experience and training of the previous eleven 
years. That Is why they succeeded, so far as human 
effort can secure human liberty by means of written 
constitutions of government. In securing to themselves 
and their posterity the utmost measure of protected 
enjoyment of human life and happiness. That we, 
their posterity, may keep their legacy Intact and trans¬ 
mit it to the generations to come. It Is necessary that 
we, the average Americans, should share somewhat 
with them their amazingly accurate knowledge of the 
simple but vital facts which enabled them to create 
a nation and, by Its American Constitution, to secure 
to themselves. Its citizens, protected enjoyment of 11 fe^ 
liberty and happiness. 

When they were actually engaged In this work of 
creation. It was truthfully said of them that “The 
American people are better acquainted with the science 
of government than any other people in the world.” 
For over a hundred years the history of 'America at¬ 
tested the truth of that statement. As they were a 


Subjects Become Citizens 


3 


simple people, their knowledge of the science of gov¬ 
ernment was derived from their accurate understand¬ 
ing of a few simple facts. It is a certainty that we 
can keep their legacy by learning those same facts. Let 
us quickly learn them. The accurate knowledge of 
them may best be acquired by briefly living again, with 
those simple Americans of an earlier generation, 
through their days from 1775 to 1790. 

The individual Americans of that generation were 
all born subjects of the British government. We do 
not understand the meaning of that statement until we 
accurately grasp the vital distinction between a “sub¬ 
ject” of a government and a “citizen” of a nation. 

It is hardly necessary to point out, but it is amaz¬ 
ingly important to remember, that a “subject,” as well 
as a “citizen,” is first of all a human being, created 
by an omnipotent Creator and endowed with human 
rights. All would be well with the world, if each 
human being always accurately knew the difference 
between right and wrong and if his accurate knowledge 
invariably controlled his exercise of his human freedom 
of will. In that case, no human government would be 
needed to prescribe and to enforce rules of personal 
conduct for the individual. As such is not the case, 
human government must exist. Its sole reason for 
existence, therefore, is that it may prescribe and en¬ 
force rules for those whom it can compel to obey its 
commands and that it may thus secure the utmost 
measure of protected enjoyment of human rights for 
those human beings whose government it is. 

Time does not permit and necessity does not re¬ 
quire that we dwell upon the various types of govern¬ 
ment which have existed or which have been created 
supposedly to meet this human need. It is sufficient to 


4 


Citizen or Subject? 


grasp the simple and important fact that government 
ability to say what men may or may not do, in any 
matter which is exercise of human freedom, is the very 
essence of government Where a government has no 
ability of that kind, except what the men of its nation 
grant to it, where those men limit and determine the 
extent of that ability in their government, the men 
themselves are citizens. Where a government claims 
or exercises any ability of that kind, and has not re¬ 
ceived the grant of it directly from the men of the 
nation, where a government claims or exercises any 
ability of that kind, without any grant of it, or by grant 
from government to government, the men of that na¬ 
tion are subjects. 

In the year 1775, under the British law, the Parlia¬ 
ment at Westminster claimed the unqualified right to 
determine in what matters and to what extent laws 
should be made which would interfere with individual 
freedom. From such decision of the legislative part 
of the British Government there was no appeal save 
by force or revolution. For this reason, that every 
human being under that Government must submit to 
any interference with individual freedom commanded 
by that Legislature, all British human beings were 
“subjects.” And, as all Americans were then under 
that British Government, all Americans were then 
“subjects.”^ Such was their legal status under the so- 
called British Constitution. Curiously enough, how¬ 
ever, until a comparatively short time prior to 1775, 
such had not been the actual status of the Americans. 
In this sharp contrast between their legal and their 
actual status, there will be found both the cause of 
their Revolution and the source of their great and 
accurate knowledge of the sound principles of repub- 


Subjects Become Citizens 5 

lican government which they later made the funda¬ 
mental law of America. 

From the day their ancestors had first been British 
colonists in America their legal status had been that of 
subjects of the British Government. But, so long as 
they remained merely a few widely scattered sets of 
human beings in a new world, struggling to get a bare 
existence from day to day, they offered no temptation 
to the omnipotent British Government to oppress them, 
its subjects. They still had to show the signs of acquir¬ 
ing that community wealth which has always been the 
temptation of government to unjust exaction from the 
human beings it governs. For that reason, their legal 
government concerned itself very little about them or 
their welfare. It thus became their necessity to govern 
themselves for all the purposes for which they locally 
needed government as security to their individual wel¬ 
fare. 

Only thirteen years after the first permanent English 
settlement in Virginia, “Sir George Yeardley, then the 
Governor of the colony, in 1619 called a general assem¬ 
bly, composed of representatives from the various plan¬ 
tations in the colony, and permitted them to assume and 
exercise the high functions of legislation. Thus was 
formed and established the first representative legisla¬ 
ture that ever sat in America. And this example of a 
domestic parliament, to regulate all the internal con¬ 
cerns of the country, was never lost sight of, but was 
ever afterwards cherished [until 1917] throughout 
America, as the dearest birthright of freemen.’’ (i 
EIL Deh. 22.) 

“On the nth of November, 1620, those humble but 
fearless adventurers, the Plymouth colonists, before 
their landing, drew up and signed an original compact, 


6 Citizen or Subject? 

in which, after acknowledging themselves subjects of 
the crown of England, they proceed to declare: ‘Hav¬ 
ing undertaken, for the glory of God, and the advance¬ 
ment of the Christian faith, and the honor of our king 
and country, a voyage to plant the first colony in the 
northern parts of Virginia, we do, by these presents, 
solemnly and mutually, in the presence of God and of 
one another, covenant and combine ourselves together 
into a civil body politic, for our better ordering and 
preservation, and furtherance of the ends aforesaid. 
And by virtue hereof do enact, constitute, and frame, 
such just and equal laws, ordinances, acts, constitutions, 
and officers, from time to time, as shall be thought most 
meet and convenient for the general good of the colony; 
unto which we promise all due submission and obedi¬ 
ence.’ This is the whole of the compact, and it was 
signed by forty-one persons. 

“It is, in its very essence, a pure democracy; and, in 
pursuance of it, the colonists proceeded soon afterwards 
to organize the colonial government, under the name 
of the Colony of New Plymouth, to appoint a Governor 
and other officers and to enact laws. The Governor 
was chosen annually by the freemen, and had at first 
one assistant to aid him in the discharge of his trust. 
Four others were soon afterwards added, and finally 
the number was increased to seven. The supreme 
legislative power resided in, and was exercised by, the 
whole body of the male inhabitants, every freeman, 
who was a member of the church, being admitted to 
vote in all public affairs. The number of settlements 
having increased, and being at a considerable distance 
from each other, a house of representatives was estab¬ 
lished in 1639, the members of which, as well as all 
other officers, were annually chosen.” (i Ell. Deb. 25.) 


Subjects Become Citizens 


7 

These, are two examples typical of the way in which 
the English colonists, for the first hundred years, 
largely governed themselves by legislators chosen from 
among themselves. In this manner, while legally “sub¬ 
jects” of their European government, these Americans 
were actually “citizens” of their respective communi¬ 
ties, actually governed in their individual lives and 
liberties by governments which derived all their powers 
of government from these “citizens.” In this manner, 
through the best teacher in the world, personal experi¬ 
ence, they learned the vital difference between the rela¬ 
tion of “subject” and “citizen” to governments. Later, 
the echo of that education was heard from Lincoln 
when he pleaded that government of the people, by 
the people and for them should not perish from the 
earth. 

As early as 1754 these Americans began to feel the 
first real burden of their legal status as “subjects.” 
Their community wealth was beginning to attract the 
attention of the world. As a result, the legal Govern¬ 
ment awoke to the fact of their existence and of its own 
omnipotent ability to levy upon that wealth. The 
Americans, for more than a century educated in actual 
self-government, quickly showed the result of that edu¬ 
cation to the accurate knowledge that no government 
can have any just power except by the consent or grant 
of those to be governed by the exercise of such power. 
As far back as 1754, deputies of the various American 
colonies, where human beings had educated themselves 
to be free men, assembled at Albany in an endeavor 
to propose some compromise by which the American 
people would be enabled to preserve their human free¬ 
dom against unjust interference by the Westminster 


8 


Citizen or Subject? 


Legislature. We are all familiar with the failure of 
that endeavor. We are all familiar 'with the succes¬ 
sive steps of the continuing struggle between “subjects,” 
educated to be “citizens,” and an omnipotent govern¬ 
ment, unshaken in its purpose to make their actual 
status the same as their legal one. 

When the year 1776 dawned, these Americans were 
still “subjects” under the law of the British Empire. 
They were, however, “subjects” in open rebellion 
against their government, justifying their rebellion on 
the basic American legal principle that every just 
power, even of a lawful government, must be derived 
from the consent or grant of the human beings them¬ 
selves who are to be governed. On the memorable 
day in July of that year, despairing of any success in 
getting the British Government to recognize that 
basic principle, and asserting, for the first time in his¬ 
tory, that they themselves were collectively the posses¬ 
sors of the supreme human will in and for America, 
they enacted the immortal Statute which we know as 
the Declaration of Independence. 

The Declaration of Independence, which was the first 
political act of the American people in their independent 
sovereign capacity^ lays the foundation of our national ex¬ 
istence upon this broad proposition: “That all men are 
created equal; that they are endowed by their Creator 
with certain inalienable rights; that among these are life, 
liberty, and the pursuit of happiness.” (Justice Bradley’s 
opinion in Slaughter House Cases, 16 JValL 36, at page 
115.) 

In this Statute, the American people clearly stated 
and definitely settled for all time the basic legal prin¬ 
ciple on which rests the validity of every constitutional 
article or statute law, which either directly interferes 


Subjects Become Citizens 


9 


or vests ability in governments to interfere with an 
American in the exercise of his human freedom. There 
is nothing vague or ambiguous in their statement. The 
legal principle, so clearly stated and so definitely set¬ 
tled, is that no government in America can have any 
just power of direct interference with individual free¬ 
dom unless such power be derived by direct grant from 
the Americans to be governed by the exercise of that 
power. 

That Statute has never been repealed. The Amer¬ 
icans of that generation, throughout all the momentous 
political battles of the next thirteen years, when they 
were making and unmaking nations and creating a fed¬ 
eration of nations, and later subordinating it to a 
union of human beings, never failed to obey that Stat¬ 
ute and to act in strict conformity to its basic American 
principle. 

From the moment when that Statute was enacted by 
the supreme will in America, every American ceased, 
forever to be a “subject” of any government or gov¬ 
ernments in the world. It was not until 1917 that 
any government or governments dared to act as if the 
American were still a “subject.” 

In that summer of 1776, as the Americans were 
engaged with their former Government in a bitter 
and protracted war, they had little time or thought to 
give, as one people, to the constitution of a govern¬ 
ment best designed to secure to themselves the utmost 
possible measure of protected enjoyment of individual 
human freedom. In their rebellion, they had dele¬ 
gated the management of their common interests to a 
committee of deputies from each former colony, which 
committee was called the Congress. By the declared 
supreme will of the whole American people, the Amer- 


10 


Citizen or Subject? 


leans In each former colony now constituted an Inde¬ 
pendent nation, whose human members were now the 
“citizens” of that nation. Under the declared basic 
American legal principle, it was Imperative that any 
government should get its every valid power from Its 
own citizens. Knowing this, the Congress, almost 
immediately after the Declaration of July, made the 
formal suggestion to the citizens In each nation that 
they constitute a government for themselves and that 
they grant to such government ability to interfere with 
their own human freedom in such matters and to such 
extent as they deemed wise. The manner in which 
the citizens of each nation acted upon this suggestion 
should have stamped Itself so Irrevocably upon the 
mind of America as never to have been forgotten by 
any later generation of Americans. The citizens of 
those nations were of the “people who were better 
acquainted with the science of government than any 
other people in the world.” In each nation they were 
creating the very essence of security for a free people, 
namely, a government with limited ability to interfere 
with individual freedom. In some matters, so as to 
secure the greatest possible protected enjoyment of 
human liberty. They knew, as only human beings could 
know who were then offering their very lives to uphold 
the basic law of America, that such ability could never 
be validly given to any government by government 
Itself, acting In any manner, but only by direct action 
and grant of those later to be governed by the exer¬ 
cise of that ability. What method did those citizens, 
so thoroughly educated In the basic principles of repub¬ 
lican government, employ to secure the direct action 
of the human, beings themselves In giving that ability 
of that kind to their respective governments? They 


Subjects Become Citizens 


II 


acted upon the suggestion from the Congress of 1776, 
as Marshall later expressed it from the Bench of the 
Supreme Court, “in the only manner in which they 
can act safely, effectively and wisely on such a subject, 
by assembling in convention” in their respective states. 
Long before Marshall voiced judicial approval of 
this American method of direct action by the people 
themselves, in matters in which only the people them¬ 
selves can validly act at all, Madison, in the famous 
Virginia convention of 1788, paid his tribute to these 
conventions of the people in each of the thirteen na¬ 
tions. This was the tribute of Madison: “Mr. Chair¬ 
man, nothing has excited more admiration in the world 
than the manner in which free governments have been 
established in America; for it was the first instance, 
from the creation of the world to the American Revo¬ 
lution, that free inhabitants have been seen deliberat¬ 
ing on a form of government, and selecting such of 
their citizens as possessed their confidence, to deter¬ 
mine upon and give effect to it.” (3 Ell. Deb. 616.) 

Later herein there will be occasion to speak at 
greater length of this American method of direct ac¬ 
tion by the people themselves, through the deliberative 
conventions of deputies chosen by the people and from 
the people for that one purpose, giving to governments 
a limited ability to interfere with individual freedom. 
At this point, it is sufficient to say that, since 1789 and 
until 1917, no government in America ever claimed 
to have acquired ability of that kind except through 
the action of such a convention or conventions or 
through the direct voting of its citizens themselves for 
or against the grant of such ability. 

If we again turn our minds upon those later days 
of 1776, we find that the Americans, through the direct 


12 


Citizen or Subject? 


action of the people in each independent nation, had 
become respectively citizens of what we now know as 
their respective states, each of which was then a free 
nation. Those thirteen nations were then allied in 
war. There did not yet exist even that political entity, 
later created and known as a federation of those na¬ 
tions. At that time and until quite some years after 
the Revolution had ended, there was no such thing as 
a “citizen” of America, because the America we know, 
the organized human membership society which is the 
American nation, did not yet exist. At that time and 
until the American nation did actually exist, as a polit¬ 
ical entity, there was no government In the world and 
no collection of governments In the world, which, on 
any subject or to any extent, could Interfere generally 
with the Individual freedom of Americans, as Amer¬ 
icans. In each of the thirteen American nations, the 
citizens of that nation had vested their own govern¬ 
ment with some ability of that kind. 

At this point, it is well to digress for a moment in 
order that we may well understand that In none of 
these thirteen nations did Its citizens vest In Its govern¬ 
ment an unlimited ability to Interfere with Individual 
freedom. All the citizens of those respective nations 
were then battling with a mighty Government which 
claimed such unlimited ability over all of them, as sub¬ 
jects, and they were battling to establish forever In 
America the basic doctrine that no government of free 
men could ever have unlimited ability of that kind. In 
each of the thirteen nations. Its citizens vested Its gov¬ 
ernment with ability of that kind only to a limited 
extent. They did this in strict conformity to repub¬ 
lican principles. 

For the many who do not know. It is well to state 


Subjects Become Citizens 


13 


clearly the distinction between a pure democracy and 
a republic. In both, the human beings constitute the 
nation or the state and are its citizens. In both, the 
citizens themselves limit the matters and the extent 
in which they shall be governed at all in restraint of 
their individual freedom. In both, therefore, it is 
accurate and truthful to state that the people govern 
themselves. The actual difference lies in one fact. In 
a democracy the people themselves assemble and them¬ 
selves enact each specific rule of conduct or law inter¬ 
fering with individual freedom. In a republic, it is 
always possible that the citizens may assemble, as in 
a pure democracy, and enact any specific rule of con¬ 
duct or law. But, in a republic, its citizens generally 
prefer to act, in such matters, through attorneys in 
fact or representatives, chosen by themselves for the 
special purpose of exercising a wise discretion in mak¬ 
ing such laws. In a true republic, however, where the 
citizens are to remain free men, they secure to them¬ 
selves absolute control of their representative law¬ 
makers through two most effective means. In the first 
place, they ordain that their attorneys in fact for the 
purpose of law-making, generally called their legis¬ 
lators, shall be selected by themselves from time to 
time, at comparatively short intervals. This precau¬ 
tion enables the people, through new attorneys in fact, 
quickly to repeal a law of which they do not approve. 
In the second place, the people, in constituting their 
government, limit the law-making ability of these tem¬ 
porary attorneys in fact or legislators. This is the 
most important fact in a free republic. Later herein 
there will be explained the marvelous and effective 
manner in which this particular security for human 
freedom was later achieved by the citizens of the Re- 


14 


Citizen or Subject? 


public which we know as America, when they consti¬ 
tuted their government. At present, there is to be 
mentioned the general method which the citizens of 
each of those thirteen nations, in 1776, employed to 
achieve this particular security. 

In each nation the citizens constituted a legislature 
to be their only attorney in fact for the purpose of 
making valid laws. In this legislative department they 
did not vest enumerated powers to interfere with indi¬ 
vidual freedom. But in it they did vest whatever 
ability of that kind^ under the American doctrine of 
human liberty, they thought a government of free men 
or citizens ought to have. They did not, however, 
grant unlimited ability to make laws interfering with 
individual freedom. When constituting their govern¬ 
ment they named^many matters in which no laws could 
be made, such as laws abridging the right of free 
speech, laws suspending the privilege of habeas cor¬ 
pus, etc. Outside these named matters, they granted 
law-making ability of that kind to whatever extent 
American principles of human liberty determined a 
government ought to have. The extent of that ability, 
so to be determined, they left to the legislature to 
ascertain in the first instance. But to the judicial 
department they gave the right finally to ascertain and 
decide whether, in any particular law, the legislative 
department had exceeded its granted ability. 

In living again the education days of the Amer¬ 
icans, who later created and constituted the republican 
nation which is America, we have come now to the 
close of the eventful year 1776. We find ourselves, 
at that time, viewing this status of the American human 
being and his relation to all governments. 

With his fellow Americans, he has declared that 


Subjects Become Citizens 15 

they are not the subjects of any government or govern¬ 
ments in the world. With his fellow Americans, on 
many battlefields, he is fighting their former Govern¬ 
ment, which still claims that they are its subjects. If 
he is a Virginian, he and his fellow Virginians, with 
the consent of their fellow Americans, have constituted 
themselves a free and independent nation of human 
beings and have given to their law-making attorney in 
fact, the legislature of Virginia, some ability to make 
laws in restraint of the individual freedom of Virgin¬ 
ians, in such matter and to such extent, as the citizens 
of Virginia have deemed wise. In each of the other 
twelve nations the situation is the same. In no nation, 
in America, has any government servant and attorney 
in fact of the people any ability whatever to interfere 
with human freedom in any matter or to any extent, 
except such ability of that kind as has been given to 
that government by direct grant from its citizens. No¬ 
where, in America, has any government any power 
whatever, in any matter or to any extent, to make a 
valid command restraining the human freedom of the 
individual American as an American. All Americans 
are fighting throughout America with the armies of the 
only government in the world which claims such abil¬ 
ity. All Americans everywhere are determined to 
win that war and keep it the basic law of America that 
no government ever shall have ability of that kind 
unless the whole American people, by direct grant 
from themselves, shall give it to a general American 
government. There is yet no republic of America. 
There are yet no citizens of America. There are only 
citizens of thirteen respective nations, which nations 
are allied in an existing war. The affairs of the allied 
nations are being directed by a committee of delegates 


16 Citizen or Subject? 

from the different nations, called the Congress. The 
first Committee or Congress of that kind, known in 
history as the First Continental Congress, had met at 
Philadelphia from September 5 to October 26, 1774, 
and “recommended peaceful concerted action against 
British taxation and coercion.” The second Commit¬ 
tee, known as the Second Continental Congress, had 
assembled, also at Philadelphia, on May 10, 1775, 
and had assumed direction of the war. 


CHAPTER II 


THE STATE GOVERNMENTS FORM A UNION OF STATES 

have now lived with the American of an earlier 
» ^ generation through the days in which he ceased to 
be a subject of any government, and in which he estab¬ 
lished forever in America the basic law that no gov¬ 
ernment can exercise or possess any ability to interfere 
with his individual freedom except by direct grant 
from its citizens. We have seen him, in each of the 
former colonies, create a nation, become one of its 
citizens and, with his fellow citizens of that nation, 
give to its government some ability of that kind. 

When we recall it to be the tribute of history that 
these Americans were better acquainted with the sci¬ 
ence of government than any other people in the 
world, it is well to reflect for a moment upon the sig¬ 
nificant exhibition of that knowledge during the days 
through which we have just lived with them. 

When the suggestion came from Philadelphia, in 
the summer of 1776, that the Americans in each for¬ 
mer colony constitute a government for their own 
nation and give to it a limited ability to govern them¬ 
selves in restraint of their individual freedom, it is 
recorded history that Americans generally knew that 
a gift of that kind to government could never be validly 
made by governments. It “was felt and acknowledged 
by all” that only its own citizens ever could grant abil¬ 
ity of that kind to any government. 

17 


18 Citizen or Subject? 

As the people of New England had been the most 
thoroughly trained in the actual 'experience of self 
government, we naturally find them acting upon and 
clearly stating the American legal principle that legis¬ 
latures never can give ability of that kind to govern¬ 
ment. The records of Concord, Massachusetts, for 
October 21, 1776, show how clearly this was under¬ 
stood by the Americans of that generation. After the 
Philadelphia suggestion had been made, the Massa¬ 
chusetts legislature framed a constitution and sent it 
to the Massachusetts townships for approval. On that 
October 21, 1776, the people of Concord refused to 
act upon it. Their reason was that government ability 
to interfere with human freedom could never come 
from legislatures but must always come directly from 
the citizens themselves. Let the Americans of 
Concord, in their own words, impart some of their 
knowledge to the Americans of this generation. 

“Resolved secondly, that the supreme Legislative, 
either In their proper capacity or In joint committee, 
are by no means a body proper to form and establish 
a Constitution or form of government for reasons fol¬ 
lowing, viz.: First, because we conceive that Consti¬ 
tution in its proper idea intends a system of principles 
established to secure the subject In the possession of 
and enjoyment of their Rights and Privileges against 
any encroachment of the Governing Part. Secondly, 
because the same body that forms a Constitution have 
of consequence a power to alter it. Thirdly, because 
a Constitution alterable by the Supreme Legislative Is 
no security at all to the subject against the encroach¬ 
ment of the Governing Part on any or on all their 
Rights and Privileges.” 

(See Constitutional Review, April, 1918, p. 97.) 


A Union OF States 


19 


The people of Concord or New England were not 
alone in this knowledge. On this we have the later 
testimony of Marshall from the Bench of the Supreme 
Court. Speaking of that day, a few years after 1776, 
when the whole American people created their nation 
and gave enumerated powers of that kind to its govern¬ 
ment, he said: 

But when, “in order to form a more perfect Union,” 
it was deemed necessary to change this alliance into an ef¬ 
fective government, possessing great and sovereign powers, 
and acting directly on the people, the necessity of referring 
it to the people, and of deriving its powers directly from 
them, was felt and acknowledged by all. (M’Culloch v. 
Maryland, 4 Wheat. 316.) 

Fixing this knowledge of that day firmly in our 
mind, let us go on with the remarkable Americans of 
that generation through the next period in which the 
relation of government to government and of nation 
to nation was changed, but in which the status of the 
citizen of each nation and his relation to all govern¬ 
ments remained exactly what he and his fellow citizens 
of that nation had made it. 

On November 15, 1777, there came from the Con¬ 
gress at Philadelphia another suggestion, this time a. 
proposal to the thirteen nations that they, already al¬ 
lied in an existing war, should form a permanent union 
or federation of nations. With that proposal went a 
drafted set of constitutional Articles, having for their 
purpose the establishment of a government (to be 
called a Congress) for the proposed federation, some 
of which Articles would give to that government abil¬ 
ity to govern the members of the union, the thirteen 
nations. The proposal and the constitutional Articles 


20 


Citizen or Subject? 


were sent, for ratification or rejection, to the legisla¬ 
ture of each nation as its proper attorney in fact in 
creating a federal union of nations and in giving 
federal ability to govern, which federal ability never 
directly interferes with individual freedom. 

Let us reflect upon the accurate knowledge of the 
science of government again shown by the Americans 
of that generation in that proposal. Only a few short 
months earlier there had come, from the same men at 
Philadelphia, the proposal that national government 
be established in each nation. These men at Philadel¬ 
phia had been subjects of the British Government until 
July, 1776. All government ability to interfere with 
human freedom, then as now, under British law, had 
its source in a legislature, the Westminster Parlia¬ 
ment. And yet these men at Philadelphia, in the sum¬ 
mer of 1776, had accurately known that, under basic 
American law, such government ability could only have 
one valid source, direct action by the citizens them¬ 
selves assembled in conventions. Acting on this knowl¬ 
edge in the summer of 1776, the suggestion that gov¬ 
ernment in each state be given national power to gov¬ 
ern, namely, ability directly to interfere with individual 
freedom, had come as a suggestion to the citizens of 
each nation for their own direct action. That sugges¬ 
tion had been followed, and thus had been exercised, 
for the first time since Americans ceased to be subjects, 
the inherent and inalienable and always existing ability 
of the citizens of a free nation to make any kind of 
constitutional Articles of government, including the 
national kind which give government any power to 
interfere with individual freedom. 

When, therefore, these same men at Philadelphia 
made their proposal of November, 1777, other 


A Union of States 


21 


constitutional Articles of government be made In Amer¬ 
ica, the proposed Articles of Union between nations, 
It might have been natural that this proposal also 
should have suggested ratification of these Articles by 
the people themselves. It would have seemed all the 
more natural, when we remember that one of the 
leaders at Philadelphia In that time was Jefferson, the 
historic champion of human Individual freedom against 
all governments. But the Americans of that genera¬ 
tion and their leaders were not as the leaders of our 
own time. They knew very accurately the difference 
between a national Article of government, which gave 
ability to Interfere with human freedom, and a federal 
Article, which gave no ability of that kind but only 
ability to govern nations or states, as political entitles. 
With this accurate knowledge of the vital distinction 
between a national and a federal Article, they naturally 
knew that either the people themselves or the legis¬ 
lative attorney in fact of the nation, which makes all 
agreements for the nation with other nations, may 
validly make a federal Article. Therefore, they sent 
the proposed Articles of Confederation between na¬ 
tions (not one of which gave national power to the 
proposed federal government) to the legislatures of 
the respective nations for ratification or rejection on 
behalf of the nations. As Marshall later summed up 
the knowledge which prompted that sending of those 
federal articles to the legislatures: 

To the formation of a league, such as was the Confedera¬ 
tion, the State sovereignties were certainly competent. 

(IVrCulloch V. Maryland, 4 Wheat. 316.) 

Each state legislature acted favorably upon the pro¬ 
posed articles and ratified them. By July 9, 1778, the 


22 


Citizen or Subject? 


legislatures of ten states had ratified. The legislatures 
of New Jersey and Delaware followed before the end 
of February, 1779. The legislature of Maryland did 
not ratify until March i, 1781. 

It is well for the average American of the present 
generation, at this point, to fix firmly in his mind that 
this legislative ratification of these federal Articles was 
the important exercise of an existing and recognized 
ability of state legislatures to make all constitutional 
articles of a federal nature, which never confer any 
government ability directly to interfere with human 
freedom. It is well for the same American also to 
fix firmly in his mind that it was the exercise of an 
ability to make constitutional articles entirely distinct 
from the other existing ability to make them, which had 
been exercised, in each nation, directly by the citizens 
themselves, in “conventions,” in the preceding year of 
1776. In that year, there had been exercised the in¬ 
herent and inalienable and always existing ability of 
citizens of a nation, assembled in conventions of depu¬ 
ties chosen for that express purpose, to make any kind 
of constitutional article, whether it confers federal or 
national power on government. In the years 1777 to 
1781, there had been exercised the recognized and 
existing hut limited ability of state legislatures to make 
federal articles, an ability clearly then known not to 
include the ability to confer upon government national 
power to interfere with individual freedom. 

Living with those Americans through their great 
days, we have now reached the day in 1781 when they 
were all citizens of some nation but were not all citi¬ 
zens of the same nation. The great Republic, America, 
had not yet been born. The legal status of the Ameri¬ 
can as an individual, and his relation to all governments 


23 


A Union of States 

/ 

was exactly the same as It had been since 1776. Each 
American was the citizen of some nation. His Indi¬ 
vidual freedom could be directly interfered with only 
by some law of the legislature of that single nation 
under a valid grant, from him and his fellow citizens, 
of power to enact that law on that subject. Neither 
the legislature of any other nation in America, nor the 
legislatures of all other nations In America, nor the 
government of nations which those legislatures had 
created and endowed with federal powers, the Con¬ 
gress of the Federation, could singly or collectively 
Issue a single command to him. Interfering In any 
manner with his human freedom, or could give to any 
government or governments a power to Issue such a 
command. 

There were existing and recognized by all In 
America two distinct and different abilities—one lim¬ 
ited and the other unlimited—to make constitutional 
articles. One was the limited ability of state legis¬ 
latures. They could give federal power to a govern¬ 
ment, but they could not give any national power or 
power directly to Interfere with human freedom. The 
other was the unlimited ability of the citizens of any 
nation. They could give any kind of power, federal 
or national, to their own government. Each ability, at 
a different time, had been evoked to exercise by a dis¬ 
tinct proposal from the same Americans at Philadel¬ 
phia, the Second Continental Congress, which had 
under Its direction the conduct of the Revolutionary 
War. 

Dormant for the time being, but existing over all 
other ability In America, was the supreme will of the 
collective people of America, who had not yet created 
their own great Republic or become Its citizens or given 


24 


Citizen or Subject? 


to its government its enumerated powers to interfere 
with their individual freedom. 

This was the legal status of the American, and his 
relation to all governments, and the relation of gov¬ 
ernments in America to one another, when the Treaty 
of Peace was concluded with England on September 3, 
1783, and was later ratified by the Federal Congress 
on January 14, 1784. 


CHAPTER III 


AMERICANS FIND THE NEED OF A SINGLE NATION 

T IVING over the great days of our forefathers, we 
now approach the greatest of all. It comes four 
years after the end of the Revolution. Not satisfied 
with a mere union of their states, the whole American 
people, in 1787, proposed to form the great nation of 
men, America. On June 21, 1788, it is created by 
them. On March 4, 1789, its only government, now 
also the government of the continued union of states, 
begins to function. 

Between May 29, 1787, and March 4, 1789, the 
whole American people did their greatest work for 
individual liberty. That was their greatest day. 
Most Americans of this generation know nothing 
about that period. Still more is it to be regretted that 
our leaders in public life, even our most renowned 
lawyers, do not understand what was achieved therein 
for human freedom. It is of vital importance to the 
average American that he always know and understand 
and realize that achievement. That he do so, it is not 
in the slightest degree essential that he be learned in 
the law. It is only necessary that he know and under¬ 
stand a few simple facts. The experience of five years 
since 1917 teaches one lesson. It is that Americans, 
who have not the conviction that they are great con¬ 
stitutional thinkers, far more quickly than those who 
have that conviction, can grasp the full meaning of the 
greatest event in American history. 

25 


26 


Citizen or Subject? 


The reason is plain. Back in the ages, there was a 
time when scientific men ^Uznew” that the earth was 
flat. Because they “knew” it, the rest of men assumed 
that it was so. And, because they “knew” it, it was 
most difficult to convince them that their “knowledge” 
was false “knowledge.” 

In a similar way, our statesmen and constitutional 
thinkers came to the year 1917 with the “knowledge” 
that legislatures in America, if enough of them com¬ 
bined, had exactly the omnipotence over the individual 
freedom of the American which had been denied to 
the British Parliament by the early Americans. 
Naturally, it is difficult for them to understand that 
their “knowledge” is false “knowledge.” For us who 
have no false knowledge to overcome, it is compara¬ 
tively simple to grasp what those other plain Ameri¬ 
cans of 1787 and 1788 meant to accomplish and did 
accomplish. Why should it not be simple for us? 
With those other plain Americans, we have just been 
through their strenuous years which immediately pre¬ 
ceded their greatest days of 1787 and 1788. They 
were a simple people as are we average Americans of 
this generation. From living with them through those 
earlier days, we have come to know their dominant 
purpose. They sought to secure to themselves and to 
their posterity the greatest measure of protected en¬ 
joyment of human life, liberty and happiness against 
interference from outside America and against usurpa¬ 
tion of power by any governments in America. Cer¬ 
tainly, it ought not to be difficult for us to grasp 
accurately and quickly what they meant to do and what 
they did do in their last and greatest achievement in 
the quest of that protected enjoyment of human free¬ 
dom. But, with all our happy predisposition accu- 


The Need of a Single Nation 


27 


rately to understand the meaning of the facts in 1787 
and 1788, that understanding cannot come until we 
know the facts themselves. Let us, therefore, live 
through those years with those other plain Americans 
of whom we are the posterity. Only then can we un¬ 
derstand their legacy of secured liberty to us and keep 
it against usurpation by those who do not understand. 

So long as the former subjects continued their Revo¬ 
lution, it was only natural that Americans should not 
realize how inadequately a mere federation of states 
would serve really to secure the protected enjoyment 
of individual human freedom. But, as soon as that 
war had ended, discerning men began quickly to realize 
that fact. Jealousies between nations, jealousies in 
abeyance w'hile those nations were fighting a common 
war for independence, quickly had their marked effect 
upon the relations of these nations to one another and 
upon the respect which they showed to the commands 
of the government of the federation of which all those 
nations were members. As a matter of fact, those 
commands, because the governing powers of that gov¬ 
ernment were wholly federal, were tantamount to 
nothing but requisitions. Those requisitions were hon¬ 
ored largely by ignoring them. There was no way 
of enforcing respect for them or compelling observ¬ 
ance of them. ^The plan of a purely federal union of 
nations permitted no method of enforcement save that 
of war upon whatever nation or nations might refuse 
obedience to a requisition. Such a war would have 
been repugnant to the mind of every patriotic 
American. 

This was only one of the many defects coming from 
the fact that Americans, in spirit one people or nation, 
had no political existence as one nation and had no 


28 


Citizen or Subject? 


general national government, with general powers 
over all Americans, to command respect at home and 
abroad for the individual freedom of the American. 

There is neither time nor necessity for dwelling 
further upon the fact, quickly brought home to the 
American people after the close of their Revolution, 
that a purely federal government of the states was no 
adequate security for their own freedom. Let the 
words of one of themselves, apologizing for the inade¬ 
quacy of that government, attest their quick recogni¬ 
tion that it was inadequate. They are the words of 
Jay in The Federalist of 1787. This is what he said: 
“A strong sense of the value and blessings of union 
induced the people, at a very early period, to institute 
a federal government to preserve and perpetuate it. 
They formed it almost as soon as they had a political 
existence; nay, at a time when their habitations were 
in flames, when many of their citizens were bleeding, 
and when the progress of hostility and desolation left 
little room for those calm and mature inquiries and 
reflections which must ever precede the formation of 
a wise and well-balanced government for a free people. 
It is not to be Wondered at, that a government insti¬ 
tuted in times so inauspicious, should on experiment be 
found greatly deficient and inadequate to the purpose 
it was intended to answer.” {Fed., No. 2.) 


CHAPTER IV 


THE BIRTH OF THE NATION 

T IVING through those old days, immediately after 
' the peace with England of 1783, we find that pub¬ 
lic and official recognition of a fatal defect in the fed- 
eral form of union came from the inability of its 
federal government, which had no power over com¬ 
merce, to establish a uniform regulation of trade 
among the thirteen American nations themselves and 
between them and foreign nations. Discerning men, 
such as Madison and Washington and others, already 
recognized other incurable defects in any form of 
union which was solely a union of nations and not a 
union of the American people themselves, in one na¬ 
tion, with a government which should have national, as 
well as federal, powers. Taking advantage of the 
general recognition that some central power over com¬ 
merce was needed, the legislature of the nation of 
Virginia appointed James Madison, Edmund Ran¬ 
dolph and others, as commissioners to meet similar 
commissioners to be appointed by the twelve other 
nations. The instructions to these commissioners 
were to examine into the trade situation and report 
to their respective nations as to how far a uniform 
system of commerce regulations was necessary. The 
meeting of these commissioners was at Annapolis in 
September, 1786. Only commissioners from the na¬ 
tions of Virginia, Delaware, Pennsylvania, New Jersey 

29 


30 


Citizen or Subject? 


and New York attended. The other eight nations 
were not represented. 

Madison and Hamilton were both present at An¬ 
napolis and figured largely In what was done there. 
It Is an Interesting and Important fact that these two 
played a large part from Its very Inception In the peace¬ 
ful Revolution which brought to an end the Inde¬ 
pendent existence of thirteen nations—a Revolution 
which subordinated these nations, their respective 
national governments, and their federation to a new 
nation of the whole American People, and to the Con¬ 
stitution and the government of that new nation. 

At every stage of that Revolution, these two men 
were among Its foremost leaders. Recorded history 
has made It plain that Madison, more than any other 
man In America, participated In planning what was 
accomplished In that Revolution. He drafted the sub¬ 
stance of most of the Articles In what later became the 
Constitution of the new nation. By the famous essays 
(nearly all of which were written by himself or Ham¬ 
ilton) In The Federalist, explaining and showing the 
necessity of each of those Articles, he contributed most 
effectively to their making by the people of America, 
assembled In their conventions. He actually drew, 
probably In conference with Hamilton, what we know 
as the Fifth Article, which will later herein be largely 
the subject of our exclusive Interest. 

The Annapolis commissioners made a written report 
of their recommendations. This report was sent to 
the respective legislatures of the five nations, which 
had commissioners at Annapolis. Copies were also 
sent to the Federal Congress and to the Executives of 
the other eight nations In the federation. The report 
explained that the commissioners had become con- 


The Birth of the Nation 


31 


vinced that there were many important defects in the 
federal system, in addition to its lack of any power 
over commerce. The report recommended that the 
thirteen nations appoint “commissioners, to meet at 
Philadelphia on the second Monday in May next, to 
take into consideration the situation of the United 
States; to devise such further provisions as shall seem 
to them necessary to render the constitution of the 
federal government adequate to the exigencies of the 
Union; and to report such an act for that purpose, to 
the United States in Congress assembled as, when 
agreed to by them, and afterwards confirmed by the 
legislature of every state, will effectually provide for 
the same.” 

The Annapolis recommendation was acted upon by 
the legislatures of twelve nations. Each nation, except 
Rhode Island, appointed delegates to attend the Phila¬ 
delphia Convention to begin in May, 1787. Madison 
himself, in his introduction to his report of the debates 
of the Philadelphia Convention, gives his own explana¬ 
tion of why Rhode Island did not send delegates. 
“Rhode Island was the only exception to a compliance 
with the recommendation from Annapolis, well known 
to have been swayed by an obdurate adherence to an 
advantage, which her position gave her, of taxing her 
neighbors through their consumption of imported sup¬ 
plies—an advantage which it was foreseen would be 
taken from her by a revisal of the Articles of Confed¬ 
eration.” This is mentioned herein merely to bring 
home to the minds of Americans of the present gen¬ 
eration the reality of the fact, now so difficult to 
realize, that there were then actually in America thir¬ 
teen independent nations, each having its powerful 
jealousies of the other nations and particularly of its 


32 


Citizen or Subject? 


own Immediate neighbors. The actual reality of this 
fact Is something which the reader should not forget. 
It Is Important to a correct understanding of much that 
is said later herein. It Is often mentioned in the argu¬ 
ments that accompanied the making of our Constitu¬ 
tion, that the nation of New Jersey was suffering from 
exactly the same trouble as the nation of Rhode Island 
was causing to its neighbors. Almost all Imported 
supplies consumed by the citizens of New Jersey came 
through the ports of New York and Philadelphia 
and were taxed by the nations of New York and 
Pennsylvania. 

Interesting though It would be, It Is Impossible 
herein to give In detail the remarkable story of the 
four months’ Convention at Philadelphia In 1787. It 
began on May 14 and Its last day was September 17. 
It Is recommended to every American, who desires 
any real knowledge of what his nation really Is, that he 
read. In preference to any other story of that Conven¬ 
tion, the actual report of Its debates by Madison, 
which he himself states were “written out from my 
notes, aided by the freshness of my recollections.” It 
Is possible only to refer briefly but accurately to those 
actual facts. In the history of those four months, which 
are pertinent to the object of this book. 

At the very outset. It Is well for us Americans to 
know and to remember the extraordinary nature of the 
recommendation which had come from Annapolis and 
of the very assembling of that Philadelphia Conven¬ 
tion. The suggestion and the Convention were en¬ 
tirely outside any written law In America. Every one 
of the thirteen colonies was then an Independent na¬ 
tion. These nations were united In a federation. Each 
nation had Its own constitution. The federation had 


The Birth of the Nation 33 

its federal constitution. In none of those constitutions 
was there any provision whatever under which any 
such convention as that of Philadelphia could be sug¬ 
gested or held. The federal Constitution provided 
the specific mode in which ability to amend any of its 
federal Articles could be exercised. Such provision 
neither suggested nor contemplated any such conven¬ 
tion as that to be held at Philadelphia. For these 
reasons, Madison and Wilson of Pennsylvania and 
other leading delegates at that Convention stoutly 
insisted that the Philadelphia Convention had not 
exercised any power whatever in making a proposal. 

“The fact is, they have exercised no power at all; 
and, in point of validity, this Constitution, proposed 
by them for the government of the United States, 
claims no more than a production of the same nature 
would claim, flowing from a private pen.” (Wilson, 
Pennsylvania State Convention in 1787, 2 Ell, Deb. 

470-). 

“It is therefore essential that such changes [in gov¬ 
ernment] be instituted by some inforrnal and un¬ 
authorized propositions, made by some patriotic and 
respectable citizen or number of citizens.” (Madison, 
Fed. No. 40.) 

But there was a development even more remarkable 
on the second day of this unauthorized Convention. 

The Convention was presided over by Washington. 
Among the other delegates were Hamilton of New 
York, Madison and Randolph and Mason of Virginia, 
Franklin and Wilson and Robert Morris and Gouver- 
neur Morris of Pennsylvania, and the two Pinckneys 
of South Carolina. Madison himself, speaking of 
the delegates in his Introduction to his report of 
the Debates, says that they were selected in each 


34 


Citizen or Subject? 


state “from the most experienced and highest 
standing citizens.” The reader will not forget that 
each of these men came under a commission from 
the independent government of a sovereign and 
independent nation, twelve such independent govern- 
ernments and nations being represented in that Con¬ 
vention. In the face of this important fact, it is 
amazing to realize the startling proposition offered 
for consideration, on May 30, 1787. On that day, the 
Convention having gone into a Committee of the 
Whole, Randolph, commissioned delegate from the 
independent government and nation of Virginia, 
moved, on the suggestion of Gouverneur Morris, com¬ 
missioned delegate from another independent govern¬ 
ment and nation, that the assembled delegates consider 
the three following resolutions: 

“i. That a union of the states merely federal will 
not accomplish the objects proposed by the Articles of 
Confederation—namely, common defense, security of 
liberty, and general welfare. 

“2. That no treaty or treaties among the whole or 
part of the states, as individual sovereignties, would be 
sufficient. 

“3. That a national government ought to be estab¬ 
lished, consisting of a supreme legislative, executive, 
and judiciary.” (5 Ell. Deb. 132.) 

If we wish to realize the sensational nature of those 
resolutions, let us assume for a moment a similar con¬ 
vention of delegates assembled in the City of New 
York. Let us assume that the delegates have been 
commissioned respectively by the governments of 
America, Great Britain, Ireland, Canada, Australia, 
New Zealand, France, Belgium and other nations. Let 
us assume that the ostensible and proclaimed purpose 


The Birth of the Nation 


35 


of the convention, stated in the commissions of the 
delegates, is that it frame a set of federal Articles for 
a league or federation of the independent nations rep¬ 
resented and report the drafted Articles to the 
respective governments for ratification or rejection. 
Let us then assume that, on the second day of the con¬ 
vention, Lloyd George, on the suggestion of Charles E. 
Hughes, calmly proposes that the convention, as a 
Committee of the Whole, consider three resolutions, 
exactly similar to those proposed by Randolph on May 
30, 1787. Imagine the amazement of the world when 
it found that the resolutions were to the effect that the 
convention should draft and propose a constitution 
of government which would create an entirely new 
nation out of the human beings in all the assembled 
nations, and create a new national government for the 
new nation, and destroy forever the independence and 
sovereignty of each represented nation and its govern¬ 
ment and subordinate them to the new national and 
supreme government. 

This was exactly the nature of the startling resolu¬ 
tions of Randolph. Moreover, before that one day 
closed, the Committee of the Whole actually did re¬ 
solve “that a national government ought to be estab¬ 
lished consisting of a supreme legislative, executive 
and judiciary.” The vote was six to one. Massachu¬ 
setts, Pennsylvania, Delaware, North Carolina, Vir¬ 
ginia and South Carolina voted “aye.” From that 
day on, the Convention continued to prepare a pro¬ 
posal involving the destruction of the complete inde¬ 
pendence of the existing nations and of the govern¬ 
ments which respectively commissioned the delegates 
to the Convention. From that day on, the Convention 
concerned itself entirely with the drafting of consti- 


36 


Citizen or Subject? 


tutlonal Articles which would create a new nation, 
America, the members thereof to be all the American 
people, and would constitute a national government 
for them, and give to it national powers over them, 
and make it supreme, in its own sphere, over all the 
existing nations and governments. 

It is interesting and instructive to know that all this 
startling purpose, later completely achieved by appeal 
to the existing ability of the possessors of the supreme 
will in America, the people, assembled in their conven¬ 
tions, had not been the conception of a moment. 

We find Madison, by many credited with the most 
logical mind of his remarkable generation, carefully 
planning, long before the meeting of the Convention, a 
quite detailed conception of the startling proposal of 
Randolph. In a letter from Madison to Randolph, 
dated April 8, 1787 (5 Ell. Deb. 107), he speaks of 
“the business of May next,” and of the fact “that 
some leading propositions at least would be expected 
from Virginia,” and says, “I will just hint the ideas that 
have occurred, leaving explanations for our interview.” 
When we remember the remarkable manner, entirely 
novel in the history of political science, in which our 
Constitution creates a new nation and its supreme 
national government and yet keeps alive the former 
independent nations and their federation, the next 
sentence of that letter is of absorbing interest. It 
reads, “I think, with you, that it will be well to retain 
as much as possible of the old Confederation, though 
I doubt whether it may not be best to work the valuable 
articles into the new system, instead of engrafting the 
latter on the former.” When we read the detailed 
story of the Philadelphia Convention and study its 
product, our Constitution, there worded and later 


The Birth of the Nation 


37 


made by the people, we realize that Madison’s idea, 
expressed in the quoted sentence, was accurately carried 
out largely through his own efforts. 

Turning now to a later paragraph in that same April 
letter, we marvel at the foresight, the logical mind and 
the effective ability of the writer in later securing 
almost the exact execution of his idea by the entire 
people of a continent, even though that idea was the 
destruction of the independence of their respective na¬ 
tions and of their existing respective governments. 
That paragraph reads: “I hold it for a fundamental 
point, that an individual independence of the states is 
utterly irreconcilable with the idea of an aggregate 
sovereignty. I think, at the same time, that a con¬ 
solidation of the states into one simple republic is not 
less unattainable than it would be inexpedient. Let it 
be tried, then, whether any middle ground can be 
taken, which will at once support a due supremacy of 
the national authority, and leave in force the local 
authorities so far as they can be subordinately useful.” 

This remarkable letter then goes on, paragraph by 
paragraph, to suggest that, in the new Articles, the 
principle of representation be changed, so as not to be 
the same for every state; the new government be given 
“positive and complete” national power “in all cases 
where uniform measures are necessary”; the new gov¬ 
ernment keep all the federal powers already granted; 
the judicial department of the new government be 
nationally supreme; the legislative department be 
divided into two branches; the new government have 
an executive department; there be an Article guaran¬ 
teeing each state against internal as well as external 
dangers. In other words, the letter reads like a 
synopsis of the principal provisions of our present Con- 


38 


Citizen or Subject? 


stitutlon, although the letter was written over a month 
before the Philadelphia Convention began to draft 
that Constitution. 

One paragraph in that remarkable letter is very im¬ 
portant as the first of many similar statements, with 
the reasons therefor, made by Madison in the Phila¬ 
delphia Convention, in the Virginia convention which 
ratified the Constitution and in The Federalist which 
urged its ratification. Madison was writing his letter 
within a few short years after the American people had 
made their famous Statute of 1776. He knew its basic 
law that every ability in government to interfere with 
individual freedom must be derived directly by grant 
from those to be governed. He knew that govern¬ 
ments could give to government federal power to pre¬ 
scribe rules of conduct for nations. He also knew 
that governments could not give to government any 
power to prescribe rules of personal conduct which 
interfered with the exercise of individual human free¬ 
dom. In other words, he knew the existing and limited 
ability of legislatures to make federal Articles and that 
such limited legislative ability was not and never could 
be, in America, competent to make national Articles. 
He also knew the existing ability of Americans them¬ 
selves, assembled in their conventions, to make any 
kind of constitutional Article, whether it were federal 
or national. He knew that the limited ability had been 
exercised in making the federal Articles of the existing 
federation and that the unlimited ability had been 
exercised, in each existing nation, in making its national 
Articles. 

With this accurate knowledge always present in his 
mind and repeatedly finding expression by him in the 
ensuing two years, it is natural that we find in his re- 


The Birth of the Nation 39 

markable letter of 1787) after his summary of what 
Articles the new Constitution ought to contain and 
nearly every one of which it does contain, the following 
significant statement: “To give the new system its 
proper energy, it will be desirable to have it ratified 
by the authority of the people, and not merely by that 
of the legislatures.” From such a logical American, it 
is expected that we should find accurate echo again and 
again of this deference to basic American law in such 
later expressions as his statement in The Federalist, 
Number 37, “The genius of republican liberty seems 
to demand . . . that all power should be derived 
from the people.” 

Having thus grown well aware of the tremendous 
part played by Madison in shaping the substance of the 
Constitution of government under which we Americans 
live, let us return to the Philadelphia Convention in 
which he figured so prominently and which worded and 
proposed the Articles of that Constitution. 

In the seven Articles, which were finally worded by 
that Convention, there are but three which concern 
themselves at all with the vesting of national power 
in government. They are the First, the Fifth and the 
Seventh. 

The First Article purports to give, in relation to 
enumerated matters, all the national power which the 
Constitution purports anywhere to grant to its only 
donee of power to make laws interfering with human 
freedom, the national Legislature or Congress. In¬ 
deed, the opening words of that First Article explicitly 
state that, “All legislative Powers herein granted shall 
be vested in a Congress of the United States, which 
shall consist of a Senate and House of Representa¬ 
tives.” Then the remaining sections of that Article 


40 


Citizen or Subject? 


go on to enumerate all the powers of that kind, the 
national powers, which are granted in the Constitution 
by the donors, the American people or citizens, as¬ 
sembled in their conventions. 

If there be any doubt in the mind of any American 
that the First Article contains the enumeration of all 
national powers granted by the Constitution, the state¬ 
ments of the Supreme Court, voiced by Marshall, 
ought to dispel that doubt. 

This instrument contains an enumeration of powers ex¬ 
pressly granted by the people to their government. . . . 

In the last of the enumerated powers, that which grants, 
expressly, the means for carrying all others into execution, 
Congress is authorized “to make all laws which shall be 
necessary and proper” for the purpose. (Gibbons v. Og¬ 
den, 9 fVheat. 1.) 

This ^Hast^* of the enumerated powers, as Marshall 
accurately terms it, is that granted in the last paragraph 
of Section 8 of the First Article. 

It is because the First Article is the constitution of 
government of the American citizen that his govern¬ 
ment has received its tribute as a government of 
enumerated powers. This fact is clearly explained 
in the Supreme Court in Kansas v. Colorado, 206 
U. S. 46. 

Indeed, we need no Marshall to make us fully under¬ 
stand that when human beings constitute a government, 
the one important thing which they do is to grant 
government power to interfere, within a limited dis¬ 
cretion, with their own individual freedom by issuing 
commands in restraint of the exercise of that freedom. 
Anything else that the government is authorized to do 
is a mere incident of its existence as a government. 
The power to issue commands interfering with human 


I 


The Birth of the Nation 


41 


freedom is the substance and essence of government. 
That is why all the national powers of any American 
government are included in whatever ability its legis¬ 
lature has to make valid commands of that kind. The 
letter which went from the Philadelphia Convention, 
with the proposed Constitution, accurately expresses 
this fact in the words, “Individuals entering into so¬ 
ciety must give up a share of liberty to preserve the 
rest.” (i Ell. Deh. 17.) By surrender of some of 
their liberties is meant their grant of power to make 
commands or laws interfering with those surrendered 
liberties. Whenever government is constituted, “the 
people must cede to it some of their natural rights, in 
order to vest it with requisite powers.” (Jay, Fed. 
No. 2.) 

We thus know for a certainty that the First Article 
of our Constitution is the only one which purports to 
vest in government any national powers. 

The Second Article deals entirely with the executive 
department, the authority of the president and that 
department to enforce valid laws, the election of the 
president and vice-president, etc. The Third Article 
deals with the authority of the judicial department 
[including authority to declare what laws have been 
validly passed, etc.] and with the manner of the ap¬ 
pointment of the members of that department, etc. 
The Fourth Article contains miscellaneous declaratory 
statements of certain things which the citizens of 
America make the fundamental law of America. The 
Sixth Article contains other declaratory statements of 
what is also made the fundamental law of America. 

This leaves to be considered only the Fifth and the 
Seventh Articles. Like the First Article, they relate to 
the vesting of national power in our American national 






42 


Citizen or Subject? 


government; but, unlike the First Article, neither of 
them purports to grant any such power to any govern¬ 
ment. They deal with the manner of its grant by the 
only competent grantors of power of that kind, the 
“conventions” of the American people, called by that 
name, “conventions,” in the Fifth and Seventh Articles. 
As the Seventh Article was intended by those who 
worded it to accomplish its purpose simultaneously 
with and by reason of its ratification, and as its purpose 
was the main object of the Convention which framed 
all the Articles, we will consider it before the Fifth. 

The Seventh is merely the explicit declaratory state¬ 
ment of those whose “expressed authority . . . alone 
could give due validity to the Constitution,” the 
Americans themselves assembled in their conventions, 
that when the Americans, assembled in nine of those 
thirteen conventions, have answered “Yes” to the en¬ 
tire proposed Constitution, the American nation shall 
instantly exist, all Americans in those former nations 
where those nine conventions assembled shall instantly 
be the citizens of the new nation, and all the grants of 
national power, expressed in the First Article of that 
Constitution, shall have been validly made as the first 
important act of that collective citizenship. 

We now consider for a moment the Fifth Article, 
the only remaining one which relates to grant of 
national power. That Fifth Article does not relate to 
grant of national power alone. It also relates to grant 
of federal power. It relates to the future grant of 
either of those vitally distinct kinds of power. It is 
further proof of the logical mind of the man who 
v/rote that extraordinary letter of April, 1787, and 
who largely, in substance, planned the entire system of 
a constitution of government, both federal and na- 


The Birth of the Nation 


43 


tional, which is embodied in our Constitution. Madi¬ 
son and his associates, in The Federalist and in the 
Philadelphia Convention and in the various ratifying 
conventions, repeatedly stated their knowledge that 
the proposed Constitution could not possibly be per¬ 
fect. With the utmost frankness, they expressed the 
sane conviction that it would be contrary to all human 
experience. If it were found perfect in the working out 
of an entirely new and remarkable dual system of 
government of a free people by themselves. For this 
reason, the Fifth Article was worded so as to prescribe 
a constitutional mode of procedure In which the exist¬ 
ing ability of the American citizens to make any kind 
of Article, whether national or federal, could there¬ 
after be Invoked to exercise and be exercised. It was 
also worded so as to provide a constitutional mode of 
procedure in which there could be likewise invoked to 
exercise and be exercised the existing limited ability of 
the state legislatures to make articles which were not 
national. As a matter of fact, it was only at the last 
moment, in the Convention, that Madison and Ham¬ 
ilton, remembering this limited ability of those legis¬ 
latures, wrote into Article V any mention of It and Its 
future constitutional exercise. As the story of the 
First, Fifth and Seventh Articles, at Philadelphia in 
1787, will be more fully treated hereinafter, we leave 
them now to continue the brief story of the voluntary 
and direct action of the Americans themselves, by 
which they created the nation that Is America, became 
its citizens and, as such, vested its only government 
with Its enumerated national powers. 

When the Philadelphia Convention, on September 
17, 1787, had completed its voluntary task of wording 
the proposed Constitution of a nation and Its supreme 



44 


Citizen or Subject? 


government of enumerated powers, the proposed Con¬ 
stitution was referred to the American people, for their 
own approval or rejection, assembled in their con¬ 
ventions. 

In many respects, the Philadelphia ascertainment of 
the legal necessity that it must be referred to those 
people themselves and the Philadelphia decision to 
that effect, following that ascertainment, constitute the 
most important and authoritative legal reasoning and 
decision ever made in America since July 4, 1776. 
Both reasoning and decision were naturally based upon 
the fact that the First Article purports to give national 
powers to Congress to make laws, interfering with the 
individual freedom of the citizens of America. In the 
face of that decisive fact, it was impossible for the 
Americans at Philadelphia, who had worded that 
proposed Article with its grant of enumerated powers 
of that kind, to have made any other legal decision 
than a reference of such an Article to the American 
people themselves assembled in their conventions, as 
the only competent grantors of any national power. 

The Americans at Philadelphia were human beings 
of exactly the same type as all of us. They had their 
human ambitions and differences of opinion and jeal¬ 
ousies. They were not supermen any more than w^e 
are. They were grappling with tremendous problems 
along an uncharted way in the comparatively new 
science of self government by a free people, sparsely 
settled along the extensive easterly coast of a continent 
and, at the time, citizens of thirteen distinct and inde¬ 
pendent nations. Their personal ambitions and dif¬ 
ferences of opinion and jealousies, for themselves and 
their respective nations, made the problem, which they 
set themselves to solve, one almost unparalleled in 


The Birth of the Nation 


45 


history. If they had wholly failed in their effort, as 
men with any other training and dominant purpose in 
life would certainly have failed, no just historian 
would ever have attributed such failure to any lack of 
intelligence or ability or patriotism on their part. 

It was, however, their fortune and our own that 
their training and dominant purpose in life had been 
unique in history. Among them were men, who only 
eleven years earlier, at that same Philadelphia, in the 
name and on behalf of the American people, had en¬ 
acted the Statute of 1776. As their presiding officer, 
in their effort of 1787, sat the man who had led the 
same American people in their successful effort, by the 
sacrifices of a Valley Forge and the battlefields of the 
Revolution, to make the declarations of that Statute 
the basic principle of American law. Prominent in the 
Convention was Hamilton, who had left college at 
seventeen to become a trusted lieutenant of the leader 
in that war w'hich did make that Statute our basic law. 
Among the delegates were quite a few others who had 
played similar parts in that same war for that same 
purpose. Most of the delegates had played some part, 
entailing personal sacrifice and effort, in that same war 
and for that same purpose. With such an education in 
the school whose training men find it impossible to ig¬ 
nore, the school of actual life, it was mentally impos¬ 
sible that this body of men could either forget or ignore 
or disobey the basic American law, which then com¬ 
manded them and still commands us, that no govern¬ 
ment in America can ever have or exercise any valid 
national power to interfere with human freedom ex¬ 
cept by direct grant from its citizens themselves. If 
the education of the leaders of the present generation 
had been the same, American history of the last five 






46 Citizen or Subject? 

years could have been differently written In a later 
chapter herein. 

Because the Convention was educated to know the 
Statute of ’76, the proposed grant of enumerated 
national powers in the First Article was necessarily 
referred to the only competent grantors, the American 
people themselves, assembled in their conventions. 

Familiar as we are with the result of their effort to 
solve their great problem, a result told in the history 
of the ensuing one hundred and thirty-five years in 
America, it seems fitting here to have Madison de¬ 
scribe the closing moment of that Philadelphia Con¬ 
vention, In his own words: “Whilst the last members 
were signing. Dr. Franklin, looking toward the presi¬ 
dent’s chair, at the back of which a rising sun happened 
to be painted, observed to a few members near him, 
that painters had found It difficult to distinguish. In 
their art, a rising from a setting sun. ‘I have,’ said he, 
‘often and often. In the course of the session, and the 
vicissitudes of my hopes and fears as to its Issue, looked 
at that behind the president, without being able to tell 
whether It was rising or setting; but now, at length, I 
have the happiness to know that It Is a rising, and not 
a setting sun.’ ” (5 Ell. Deb. 565.) 

The story of the actual making of that Constitution 
by the people of America, assembled in their conven¬ 
tions, is a marvelous story. No American can fully 
grasp what an American really Is unless he personally 
reads that story, not as told even by the most gifted 
writer, but as told by the recorded debates In the very 
conventions themselves of the very Americans who 
created the nation which Is America, made themselves 
Its citizens and, as its citizens, made the only valid 
grants of enumerated national power, the grants in the 


The Birth of the Nation 


47 


First Article. In a later chapter, somewhat of that 
story will be told, mostly in the very words of those 
who made those grants. At this point, we are con¬ 
cerned only to set out the hour and the moment when 
American human beings, as such, in their greatest 
Revolution, exercised their exclusive ability to give 
their one government some national power to interfere 
with individual freedom. 

Each of them was already a citizen of one of the 
existing nations. It was, however, as American human 
beings, always collectively the possessors of the su¬ 
preme will in America, and not as citizens of any 
nation, that they assembled in the conventions and, in 
the exercise of that supreme will, created a new and 
one American nation, by becoming its charter members 
and citizens. That was the first and immediate effect 
of the signing of that Constitution in the ninth conven¬ 
tion of the American people, the convention in New 
Hampshire, on June 21, 1788. That is the actual day 
of the birth of the American nation as a political entity. 
It is the day on which the American citizen, member 
of the American nation, first existed. While it is true 
that there yet was no actual government of the new 
nation, it cannot be denied that legally, from that June 
21, 1788, there did exist an American nation, as a 
political society of human beings, and that its members 
were the human beings in the former nations of Dela¬ 
ware, Pennsylvania, New Jersey, Georgia, Connecti¬ 
cut, Massachusetts, Maryland, South Carolina, and 
New Hampshire. The very moment the Americans in 
those nine former nations had signed that Constitution 
of government, they had constituted themselves a na¬ 
tion and had become its citizens. 

Simultaneously therewith, as its citizens, they had 


48 


Citizen or Subject? 


made their grant of enumerated national powers to 
interfere with their own human freedom. Simultane¬ 
ously therewith, they had destroyed forever the abso¬ 
lute independence of their nine nations; they had kept 
alive those nations, as partially independent political 
societies, each to serve certain purposes of its members 
who still remained citizens of that political society as 
well as citizens of the new nation; they had taken from 
the government of each of those nations much of its 
national power, had given to each such government no 
new power whatever, but had left with it much of its 
former national power over its own citizens; they had 
kept alive the federation of nations, now a federation 
of partially independent states; they had made their 
own new national government also the federal govern¬ 
ment of that continuing federation and their own 
national Constitution also the federal Constitution of 
that continued federation; they had subordinated all 
those nine states and the government of each and of 
the federation to their own supreme will, as the citi¬ 
zens of the new nation, expressed in its Constitution. 
This was the meaning of the second section of the Sixth 
Article in the document, which they had signed, which 
reads: “This Constitution, and the Laws of the United 
States which shall be made in pursuance thereof; and 
all Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme 
Law of the Land; and the Judges in every State shall 
be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding.” 

The makers of the new nation are identified by the 
opening words of the document: “We the People of 
the United States, in Order to form a more perfect 
Union, establish Justice, insure domestic Tranquillity, 


The Birth of the Nation 


49 


provide for the common defence, promote the general 
Welfare, and secure the Blessings of Liberty to our¬ 
selves and our Posterity, do ordain and establish this 
Constitution for the United States of America.” 

It would be diverting, were it not somewhat pathetic, 
to hear that the Constitution was made by the states. 
From that quoted Preamble alone, volumes might be 
written to show the absurdity of such thought. It 
identifies the makers as “people” and not as political 
entities. It expressly says that its makers, “the 
people,” ordain it “in order to form a more perfect 
Union.” The states already had a perfect union of 
states. But the human beings or “people” of all 
America had no union of themselves. The only 
“people” in America, who had no union of themselves, 
identify themselves unmistakably when they say, “We 
the people of the United States, in Order to form a 
more perfect Union, etc.” They are the “people” or 
human beings of America, the whole people of 
America, the collective possessors of the supreme will 
which had enacted the Statute of ’76. 

If this fact had been kept clearly in mind by our 
modern leaders and lawyers, the history of the sup¬ 
posed Eighteenth Amendment would never have been 
written. When the whole American people assembled 
in their conventions in their respective geographic 
states, they did not assemble therein as the citizens of 
their respective states. It is true that the Americans, 
who assembled in any particular convention, happened 
to be citizens of a particular state. But they were also 
part of the whole American people, whose act as a 
whole people had freed all the colonies and had per¬ 
mitted the Americans in each colony to constitute a 
nation for themselves. And, when the Americans in 


50 


Citizen or Subject? 


each convention assembled, It was to decide whether 
that part of the American people, which resided in 
that state, would agree with the American people re¬ 
siding in other states to become members and citizens 
of an entirely different society of men and grant to the 
government of the new society power to Interfere with 
the Individual rights of the members of the new society. 

How could the “citizens” of an Independent nation. 
In their capacity as such citizens, become “citizens” of 
an entirely different nation, with an entirely different 
human membership or citizenry? If the Individual 
members of a large athletic club In the City of New 
York should assemble In Its club house to determine 
whether they, as Individual human beings, should join 
with the human members of a number of other athletic 
clubs and create a large golf club, with a large human 
membership, and become members of that large golf 
club, would any of them entertain the absurd thought 
that he was becoming a member of the golf club In his 
capacity as a member of his existing and smaller ath¬ 
letic club? This is exactly what happened when the 
American people as a whole assembled in their con¬ 
ventions and decided to become members or citizens 
of the new and larger political society of men, while 
still remaining members and citizens of their respective 
smaller societies of men. 

The vital distinction between the citizen of America 
and the citizen of a state, although oftentimes one is 
the same human being. Is probably known to many of 
the modern leaders and lawyers who have considered 
and argued about the supposed Eighteenth Amend¬ 
ment. But It has been wholly Ignored In every argu¬ 
ment for or against the existence of that Amendment. 
As a matter of fact, that vital distinction has always 


The Birth of the Nation 


51 


been so Important a part of our American institutions 
that it has been the subject-matter of repeated decisions 
in the Supreme Court. It is a distinction amazingly 
important, in substance, to individual freedom in Amer¬ 
ica. So true is this that one of the most important 
Amendments ever made to the federal part of our Con¬ 
stitution was primarily intended to require that every 
state must extend to the “privileges or immunities of 
citizens” of America the same respect and protection 
which the American Constitution had previously only 
required that each state must extend to the citizens of 
the other states. 

When the conventions made the original constitu¬ 
tion, Section 2 of Article IV commanded that “The 
Citizens of each State shall be entitled to all Privileges 
and Immunities of Citizens in the several States.” 
After the Civil War had closed, it quickly was realized 
that this federal command of the Constitution did not 
protect the citizens of America in any state. And so 
this command was added to the federal part of the 
Constitution by the Fourteenth Amendment, namely, 
that “No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens” 
of America. 

It would be idle to repeat here the famous Supreme 
Court decisions in which that Court has been obliged 
to dwell upon the important result accomplished by this 
vital change in the federal part of our Constitution. 
In such cases as the Slaughter House Cases, 16 Wall. 
36, Paul V. Virginia, 8 Wall. 168, Re Kemmler, 136 
U.S. 436, U.S. V. Cruikshank, 92 U.S. 542, Blake v. 
McClung, 172 U.S. 239, Maxwell v. Sow, 176 U.S. 
581 and numerous other cases the important decisions 
have turned entirely upon the vital distinction between 


52 


Citizen or Subject? 


a citizen of America and a citizen of a particular state, 
even though the same man had the two capacities. 
Each decision turned upon the fact that the protection 
given to him In one capacity, by some constitutional 
provision, did not extend to him In the other capacity. 

If all this had not been forgotten and Ignored dur¬ 
ing the five years which began in 1917, the story of that 
five years would have been entirely different. Every¬ 
one would have known that the respective attorneys 
in fact for societies or states could not grant new 
power to Interfere with the Individual freedom of the 
members of an entirely different society, America. 

There never was a day at Philadelphia In 1787 when 
the clear-minded Americans did not remember and 
realize this vital distinction between Americans, In their 
capacity as members of their respective existing soci¬ 
eties, and Americans, in their capacity as members of 
the prospective society of the whole American people. 
There never was a day when they did not realize that 
the members of the proposed new and supreme society 
of men would never have but one attorney In fact for 
any purpose, the government at Washington, while the 
members of each small and Inferior society would still 
have, as they already had. In their capacity as such 
members, their own attorney In fact, their own gov¬ 
ernment. 

One Instance alone Is sufficient to show how that 
Philadelphia Convention never forgot these Important 
things. When the Committee of Detail, on August 6, 
1787, reported to the Convention the first draft ever 
made of our Constitution, the Preamble read: “We, 
the people of the states of New Hampshire, Massa¬ 
chusetts, etc.” (enumeratlng*all the states), “do ordain, 
declare, and establish, the following constitution for 


The Birth of the Nation 


53 


the government of ourselves and our posterity.” (5 
Ell. Deb. 376.) But, so that future generations, like 
our own, should not Ignore the fact that It was not the 
people of the respective states but the whole people 
of America who made the Constitution, before the 
proposal was made from Philadelphia, the Preamble, 
Identifying the makers of the Constitution, was changed 
to read, “We, the people of the United States,”—the 
whole people of the new nation, America. 

In the Virginia convention, Patrick Henry put the 
clear fact all In one pithy statement. He made that 
statement In one of his eloquent arguments against 
ratification of the Constitution. Many Americans to¬ 
day do not know that Patrick Henry was the most 
zealous opponent of the proposed Constitution. He 
was a citizen of the nation of Virginia. His human 
liberty as an individual could not be interfered with 
by any government or governments In the world except 
the Virginia government and only by it, under grant 
of national power to it from him and his fellow citizens 
of Virginia. That is exactly the status which he wished 
to retain for himself and which he insisted was the 
best security for individual freedom of all Americans 
in Virginia. “This is an American government, not a 
Virginia government!” he exclaimed. Nothing could 
more clearly express his knowledge, the common 
knowledge of all in that day, that he and his fellow 
Americans in that convention were being asked as 
Americans, not as citizens of Virginia, to constitute 
a new nation of the American people and a national 
government for that people. 

That is why the Tenth Amendment, responsive to 
the demand of that Virginia convention and other 
similar conventions of the American people, names the 


54 


Citizen or Subject? 


citizens of the respective states as one class of reservees 
and the citizens of America as the great reservee and 
“most Important factor” In the Tenth Amendment. 
This Is the plain meaning of the language of that 
Tenth Amendment, to those who know what America 
Is, where that language reads “to the states respec¬ 
tively, or to the people.” The word “respectively” Is 
pointedly present after the word “states” and It Is 
pointedly absent after the word “people.” Nothing 
could make more clear, to those who do not forget 
that the citizens of each state were the state Itself, 
that the words “to the states respectively” mean to the 
respective peoples or citizens of each state and that 
the words “or to the people” mean to the people or 
citizens of America, In that capacity. 


CHAPTER V 


THE CONSENT OF THE GOVERNED 

average Americans have now lived with those 
^ ^ earlier Americans through the'years In which they 
were educated to their making of the American nation, 
to their constitution of Its only general government 
with national powers. 

We have been with them In those early days when 
legally they were subjects, Inasmuch as their British 
Legislature at London had unlimited ability, not dele^ 
gated hy them, to Interfere with the Individual human 
freedom of each of them and all of them. We have 
realized that. In those very early days, despite their 
legal status, those Americans were actually and In sub¬ 
stance citizens of their own respective communities. 
Inasmuch as the legislatures which actually did Inter¬ 
fere with such freedom were the legislatures of their 
own choosing to which they themselves delegated such 
powers of Interference. 

We have been with them when their British Gov¬ 
ernment began Its attempt to exercise Its omnipotent 
ability. We have seen the Inevitable result, the Amer¬ 
ican Revolution, by a people, educated through actual 
experience In self government, against the attempt of 
any government to exercise a national power not di¬ 
rectly granted by Its citizens. We have seen their In¬ 
vincible determination. In an eight year war of sacri¬ 
fice, that no government In America shall ever have 
any national power except by direct grant from its 

55 


56 Citizen or Subject? 

citizens. We have seen them, In their Statute of ’76— 
never repealed—declare this principle to be the basic 
law of America. 

We have been with them when the Americans In 
each former colony constituted for themselves a gov¬ 
ernment and gave It limited ability to Interfere with 
their Individual freedom. Living with them at that 
time, we have realized how accurately they then 
grasped the vital fact that the granting of such national 
ability is the constitution of government and that no 
people ever are free or self-governing unless every 
grant of that kind Is made directly by the citizens of 
the nation themselves. 

We have realized that. In constituting their respec¬ 
tive national governments, the citizens of each of 
those nations withheld from Its government many pos¬ 
sible national powers, such, for example, as those men¬ 
tioned In the various Bills of Rights or Declarations 
of human liberty In the different written constitutions 
of those nations. We have realized—a vital legal 
fact never to be forgotten—how accurately those 
Americans and their governments knew that not all 
of those sovereign legislatures of those Independent 
nations could, even together, exercise or grant a single 
one of those possible national powers reserved by the 
people to themselves. We have also realized—again 
a legal fact which should have sunk deep Into our 
souls—that the very national powers, which the citizens 
of each of those nations had granted to its legislative 
government, were to be exercised only by that legisla¬ 
tive government and could not be delegated by it to 
any other government or governments. “The powers 
delegated to the state sovereignties were to be exer¬ 
cised by themselves, not by a distinct and independent 


The Consent of the Governed 57 

sovereignty created by themselves.” (Marshall, 
M’Culloch V. Maryland, 4 Wheat, 316.) 

We have lived with those Americans In those Rev¬ 
olutionary days when the legislative governments of 
their thirteen nations created “a distinct and Inde¬ 
pendent sovereignty” to govern a federal union of 
those nations but not to govern, by the exercise of 
national powers, the human beings who were the 
American people. We have seen those legislative 
governments then aware of their existing ability, each 
as the representative or attorney In fact of Its own 
nation for all federal purposes, to vest federal powers 
In a federal government. “To the formation of a 
league, such as was the Confederation, the state sov¬ 
ereignties were certainly competent.” (Marshall, 
M’Culloch V. Maryland, 4 Wheat. 316.) But those 
legislative governments knew that they could not dele¬ 
gate to any government even those limited national 
powers “delegated to the state sovereignties” by their 
respective citizens. “The powers delegated to the 
state sovereignties were to be exercised by themselves, 
not by a distinct and Independent sovereignty created 
by themselves.” (Marshall, supra.) As to the national 
powers not delegated but reserved by the people to 
themselves, the legislative governments of that day 
(as well as the American people) knew what the Su¬ 
preme Court still knew In 1907 as to national powers 
similarly withheld from the later national government 
of America: 

The powers the people have given to the General Gov¬ 
ernment are named in the Constitution, and all not there 
named, either expressly or by implication, are reserved to 
the people and can be exercised only by them, or upon /wr- 
ther grant from them. (Justice Brewer in Turner v. 
Williams, 194 U. S. 279.) 


58 


Citizen or Subject? 


We have been with those Americans in the few short 
years in which they learned that the maximum of pro¬ 
tected enjoyment of Individual freedom could never be 
obtained through a general government possessing 
naught but federal powers, the' only kind of power 
which any American government can ever obtain 
through grants made by governments or, in any way, 
except by direct grant from Its citizens themselves. 

We have been with those Americans through the 
greatest Revolution of all, when their leaders and the 
average Americans themselves, still determined to ob¬ 
tain that maximum protected enjoyment of individual 
human liberty and awake to the knowledge that it 
could not be obtained through a general government 
with naught but federal powers, rose again to the 
great occasion. We have been with them when, out¬ 
side of all then existing constitutions and outside of 
all written American law except the Statute of ’76, 
those Americans, at the suggestion of their American 
leaders, made themselves the members of one great 
political society of human beings, the nation which Is 
America. We have been with them when they gave 
the government of America, by direct grant from 
themselves, such enumerated national powers to com¬ 
mand them, the citizens of America, as they— not the 
state governments —deemed wise and necessary to pro¬ 
tect their human liberty against all oppressors, includ¬ 
ing all governments. We have been with them— and 
we have marveled —while they themselves actually 
made, by their own action, their amazingly effective 
distribution of all delegated powers to Interfere with 
Individual freedom. 

We have seen that they gave to the new govern¬ 
ment, the only government of the citizens of America, 


The Consent of the Governed 


59 


naught but enumerated national powers, with the abil¬ 
ity to make all laws necessary for the proper execu¬ 
tion of those enumerated powers, and reserved to 
themselves alone—not to any government or govern¬ 
ments in the world—all other possible national powers 
over the self-governing people, the citizens of America. 

We have seen how they, the citizens of America, 
the possessors of the supreme will in America, then 
ended the complete independence of each of the thir¬ 
teen nations but reserved to the citizens of each nation 
much of their former ability to exercise their own 
national powers of government over themselves, 
through their own delegation of such power to their 
only attorney in fact for such purpose, their own legis¬ 
lature. 

We have seen those American citizens, while de¬ 
stroying the complete independence of those former 
nations, incorporate the former federation of states 
into their own system of a society or nation of all the 
human beings of America. We have seen them, in 
the constitution of their own national government, 
make it also the federal government of that federation 
and leave with it such federal powers as they them¬ 
selves deemed wise. We know, therefore, as they 
knew in 1790 when their great distribution of power 
had become effective, that no legislature in America 
could exercise a national power not granted by its own 
citizens, and that no legislature or legislatures in Amer¬ 
ica could give any national power to any government. 

We average American citizens of this present gen¬ 
eration must now feel qualified to understand the Con¬ 
stitution and its settled distribution of all national 
powers to interfere with individual freedom. If these 
Americans could use their knowledge intelligently to 





6 o 


Citizen or Subject? 


make that amazing Constitution to protect our human 
liberty and their own, it cannot be beyond us, now 
also taught by their experience, to understand the pro¬ 
tection which that Constitution gave to them and gives 
to us against even the usurpation of our own govern¬ 
ments. Only by that understanding may we hope to 
keep that legacy of protection. No longer, now that 
we have acquired that understanding, can we make 
the great mistake of believing that the public leaders 
or lawyers of this generation are qualified to teach us 
anything about that protection. 

The experience of our leaders and lawyers has given 
them an entirely different education. In the science of 
government, than was the education of these earlier 
average Americans and their leaders, than is our own 
education In having lived over again the days in which 
all valid grants of national power in constitutions of 
American government were made by the people them¬ 
selves because people and governments alike knew that 
such grants could never be made by governments. The 
experience of public leaders and lawyers in America, 
for the past thirty years, has been almost exclusively 
concerned with property and with law and Constitu¬ 
tions In relation to property. 

In the Supreme Court, In the Slaughter House 
Cases, i6 Wall. 36 at page 116, Justice Bradley points 
out that the Declaration of Independence was the first 
political act of the American people in their Indepen¬ 
dent sovereign capacity and that therein they laid the 
foundation of national existence on the basic principle 
that men are created with equal and Inalienable rights 
to “life, liberty and the pursuit of happiness.” He 
then goes on to state that “Rights to life, liberty, and 
the pursuit of happiness are equivalent to the rights 



The Consent of the Governed 6i 

of life, liberty, and property.” We thus realize that 
the education of the Americans, who made all our 
constitutions, trained them to make Articles of gov¬ 
ernment which would secure protected enjoyment of 
these three human rights. And we have learned that 
to those Americans, life and liberty came before prop¬ 
erty in importance. 

On the other hand, the leaders and lawyers of the 
present generation have been educated to think that 
property is the one important right which constitutions 
are made to protect. Wherefore it would be extraor¬ 
dinary if any of them knew that the American people 
constituted all their governments, and made their dis¬ 
tribution of national powers among those governments 
and reserved to themselves many national powers, all 
for the main purpose of securing individual life and 
liberty, and then^ the enjoyment of property. That 
these leaders and lawyers, so educated by experience, 
have not known these things or understood at all the 
constitutional Articles, an accurate understanding of 
whose meaning depends upon a knowledge which their 
education has withheld from them, the story of the 
last five years amply demonstrates. In its detail, that 
story and that demonstration will be later dwelt upon 
herein. 

Fortunately, we average Americans of this genera¬ 
tion have not received any wrong education in the 
relative importance of human life and liberty to prop¬ 
erty in the eyes of the American people who consti¬ 
tuted all governments in America, and in the constitu¬ 
tions which those people made to secure all three 
human rights against even the usurpations of dele¬ 
gated power by the very governments which those 







62 


Citizen or Subject? 


constitutions created. Our wrong education In that 
respect has undoubtedly been attempted. The events 
of the last five years, however, while demonstrating 
the thoroughly wrong education of our leaders, have 
also shown that the average Americans still sense 
something extraordinary about governments exercising 
undelegated power over citizens of which they are not 
the governments and about governments claiming abil¬ 
ity to give to themselves and to other governments un¬ 
delegated national powers to interfere with individual 
human freedom. It has been entirely the result of the 
wrong education of our leaders and “constitutional” 
lawyers that we have not been told the legal fact that, 
and the constitutional reason why, these extraordinary 
performances on the part of governments In America 
have been just as void as they are extraordinary. 

Now that we have turned from the unsound teach¬ 
ing of those wrongly educated leaders and lawyers and 
have educated ourselves by living with the earlier 
Americans through their making of all our constitu¬ 
tions of government, we are ready to approach, with 
clear and understanding minds, a brief consideration 
of the great Constitution proposed at Philadelphia and 
made by the citizens of America. Only by such brief 
but accurate consideration can we ever realize the 
distribution of delegated national powers between a 
supreme government—legislating for all American 
citizens—and lesser governments, each legislating only 
for Its own citizens and without any power to legislate 
for American citizens. Only by such consideration 
can we realize the Importance to us of the legal fact 
that the citizens of America, when making that dis¬ 
tribution of granted national powers, reserved to them- 


The Consent of the Governed 63 

selves alone all other national powers to legislate for 
American citizens except those national powersvgranted 
and enumerated in Article I of our Constitution to the 
only national government of the citizens of America. 


CHAPTER VI 


THE CONVENTIONS GIVE THE CONSENT 

^T^HE proposal which came from Philadelphia in 
1787 was absolutely without precedent in history. 
Simply stated it was that, outside of all written law 
save the Statute of ’76, the entire American people, 
who were not one nation or its citizens, should make 
themselves one nation and the supreme nation in Amer¬ 
ica; that, simultaneously with the birth of this new 
nation, they should destroy the complete independence 
of each existing society or nation, in some one of which 
each American was a member or citizen, but keep alive 
each such society or former nation, subject to the 
supreme will of the citizens of the new nation; that 
they should keep alive the federation of those old 
nations also subject to the supreme will of the citizens 
of the new nation; that they should leave with each 
former nation (now to be a subordinate state) and to 
its citizens much of its own and their own national 
power to govern themselves on mq,ny matters without 
interference from any government or governments out¬ 
side of that state; that they should leave with those 
continuing states and their governments their existing 
and limited ability to give federal power to govern¬ 
ment by making federal Articles in the Constitution 
oi federal government; that they should, as the citizens 
of America, give to no state or states or their respec¬ 
tive governments any new power of any kind, leaving 
to the citizens of each state to determine (within the 

64 


The Conventions Give the Consent 65 


limits fixed by the Constitution of the American citi¬ 
zens) how much power its own national government 
should have to interfere with the individual freedom 
of its own citizens; that—most unique and marvelous 
conception of all—these citizens of America, simul¬ 
taneously with the birth of the new nation and in their 
capacity as its citizens, should grant to its government, 
the only government of those citizens of America, def¬ 
inite and enumerated national powers to interfere with 
their individual freedom; and that—probably the most 
important and the least remembered feature of the 
whole proposal—all other possible national powers 
over themselves, as citizens of America, should be re¬ 
served exclusively to themselves and be exercised or 
granted by them alone, “in the only manner in which 
they can act safely, effectively, 'and wisely, on such a 
subject, by assembling in Convention.” (Marshall, in 
the Supreme Court, M’Culloch v. Maryland, 4 Wheat, 

316.) 

We have not forgotten that these Americans, to 
whom that proposal was made, did act upon it in that 
only effective way, by assembling in their conventions. 

To the formation of a league, such as was the Con¬ 
federation, the state sovereignties were certainly competent. 
But when, “in order to form a more perfect Union,” it 
was deemed necessary to change this alliance into an ef¬ 
fective government, possessing great and sovereign powers, 
and acting directly on the people, the necessity of referring 
it to the people, and of deriving its powers directly from 
them, was felt and acknowledged by all. The government 
of the Union, then, (whatever may be the influence of this 
fact on the case,) is, emphatically, and truly, a government 
of the people. In form and in substance it emanates from 
them. Its powers are granted by them, and are to be ex¬ 
ercised directly on them, and for their benefit. (Marshall, 
M’Culloch V. Maryland, 4 Wheat. 316.) 







66 


Citizen or Subject? 


In view of the startling fact that our leaders and 
“constitutional” lawyers have neither felt nor acknowl¬ 
edged the necessity that new national powers of that 
government, new powers to interfere directly with the 
individual freedom of its citizens, must be derived “di¬ 
rectly” from those citizens, in the only effective way 
in which they can act, on such a subject, by assembling 
in their conventions, it is the duty of ourselves, the 
average American citizens of this generation, to insist 
that they learn this legal fact. When they shall have 
learned what all Americans once knew, the freedom of 
the American individual will be as secure as it was in 
1790. No legislature, no matter whence comes a sug¬ 
gestion to the contrary, will dare to issue any com¬ 
mand except to its own citizens, and only to them in 
matters on which those citizens have granted power to 
that legislature to command them. 

That we may intelligently so insist, and that our in¬ 
sistence may be made in the proper place and at the 
proper time, let us briefly consider on what subjects, 
in the making of our Constitution, our predecessors, 
as American citizens, granted their enumerated na¬ 
tional powers to our only government of all Americans. 
Like those predecessors, assembled in their conventions, 
we find all those enumerated powers in the First Arti¬ 
cle of the Constitution proposed from Philadelphia. 

In substance they are the war power; the power of 
making treaties; the power of regulating commerce be¬ 
tween ourselves and all people outside of America and 
between the citizens of the different states; the power 
of taxation; and all other incidental and supplementary 
powers necessary to make laws in the execution of 
these enumerated and granted powers. 

Noticeably absent from these enumerated powers 


The Conventions Give the Consent 67 

granted to the only general government of the citizens 
of America is that power, then existing and still in the 
national government of each nation or state, known 
(rather inaccurately) as the police power or the power 
to pass any law, in restraint of individual human free¬ 
dom, reasonably designed, in the judgment of that par¬ 
ticular legislature, to promote the general welfare of 
its own citizens. It seems hardly necessary, at this 
moment, to refer to the innumerable decisions of the 
Supreme Court that such power was not among those 
enumerated and granted to the American government 
by its citizens. It was solely because such power had 
definitely not been granted by them to it that the gov¬ 
ernment of the American citizens made its famous 
proposal that a portion of such power, in relation to 
one subject, be granted to it in the supposed Eighteenth 
Amendment of our Constitution. 

As a matter of fact, the police power of any govern¬ 
ment is really all its power to pass any laws which 
interfere with the exercise of individual freedom. In 
that respect, the American people made a marked 
distinction between the quantum of that kind of power 
which they granted to their one general national gov¬ 
ernment and the quantum they left in the national 
government of the citizens of each state. The quan¬ 
tum they granted to their own government was 
definitely enumerated in the First Article. On the 
other hand, except for the limitations which they them¬ 
selves imposed upon the respective governments of 
each state, they left the citizens of each state to de¬ 
termine what quantum the government of that state 
should have. 

In other words, the police power of the American 
Congress is strictly limited to the enumerated powers 


68 


Citizen or Subject? 


of that kind granted by the citizens of America. And, 
although the fact does not seem to be generally known, 
it is because the First Article vests In the sole Legis¬ 
lature of the whole American people nothing but 
enumerated powers to Interfere with the freedom of 
the Individual American that our American govern¬ 
ment has received Its universal tribute as a govern¬ 
ment of nothing but enumerated powers over a free 
people, who are Its citizens. 

In the Constitution are provisions in separate Articles for 
the three great departments of government,—legislative, 
executive, and judicial. But there is this significant differ¬ 
ence in the grants of powers to these departments: the 
First Article, treating of legislative powers, does not make 
a general grant of legislative power. It reads: “Article 
one, section one. All legislative powers herein granted shall 
be vested In a Congress,” etc.; and then, in Article 8, men¬ 
tions and defines the legislative powers that are granted. 
By reason of the fact that there is no general grant of legis¬ 
lative power It has become an accepted constitutional rule 
that this is a government of enumerated powers. (Justice 
Brewer, in the Supreme Court, Kansas v. Colorado, 206 
V. S. 46.) 

Among the national powers, which are enumerated 
In the First Article, there Is one which {whenever 
operative) approximates the extensive police power of 
a state government to Interfere with the freedom of 
Its citizens. That Is the war power of the Government 
of America. As the purpose of the Constitution of 
the American Government Is to protect the freedom 
of the American and as such freedom needs effective 
protection from foreign attack, the Americans of that 
earlier generation made the war power of their gov¬ 
ernment almost as unlimited as that of a despotic gov¬ 
ernment. All history and their own human experience 


The Conventions Give the Consent 6q 

had taught them that the war power, if it was to be 
effective for their protection, must be practically um 
limited. ' If we grasp this extent of the American war 
power, we realize why our sole American government, 
without the grant of a new national power to it, could 
validly enact what we know as the War Time Prohibi¬ 
tion Statute, although without such a new grant, it was 
powerless to enact what we know as the Volstead Act 
or National Prohibition for time of peace. It is be¬ 
cause the citizens of each state, in their Constitution 
of their national government, had given to it a general 
(although specifically limited) ability to interfere with 
their own human freedom in most matters, that each 
state government could validly make prohibition laws 
for its own citizens. It is because the American citi¬ 
zens had not given to their government any such 
general ability to interfere with their freedom, that the 
American Government, for any time except that of 
war, could not validly enact National Prohibition for 
the American people without a new grant of a new 
national power directly from its own citizens. In the 
days of those earlier Americans, the legal necessity of 
deriving such power directly from the American citi¬ 
zens themselves was “felt and acknowledged by all.” 
In our day, among our leaders and our “constitutional” 
lawyers, there was none so humble as to know or honor 
this basic legal necessity. 

The other enumerated national powers, which 
American citizens ever gave their national govern¬ 
ment, are few in number, although they vested a vast 
and necessary ability in that government to protect the 
freedom of its citizens and promote their happiness 
and welfare by laws in certain matters. For our 
present purpose, they need only be mentioned. They 


70 


Citizen or Subject? 


require no present explanation. They are the power 
to make all treaties with foreign nations or govern¬ 
ments; the power to regulate commerce, except the 
commerce within any one particular state; and the 
power of taxation. 

Having now some accurate conception of the limited 
and specific quantum of national power which Ameri¬ 
can citizens consented to grant In those earlier days, it 
Is pertinent to our inquiry, as to whether we (their 
posterity) have again become subjects, to dwell briefly 
upon the reluctance with which they made even those 
grants. In considering that attitude, it Is essential 
always to keep in mind the status of the citizens of each 
state, at that time, and their relation to their own 
national government and the relation of each state to 
the federal government of all the states. Under the 
existing system of governments, the citizens of each 
state were subject to no valid Interference whatever 
with their own Individual freedom except by laws of a 
legislature, every member of which they themselves 
elected and to which they themselves granted every 
power of such Interference which that legislature could 
validly exercise. To those free men in those free 
states, men educated In the knowledge of what is real 
republican self-government, these two facts meant the 
utmost security of their human rights. No govern¬ 
ment or governments In the world, except their own one 
state government could Interfere at all directly with 
those rights, and they had given to, and they could take 
from, that government any power of that kind. As for 
the respective states and the relation of each to the 
federal government of all, each state had an equal 
voice In the giving to or taking from that government 
any federal power and each had an equal voice, in 


The Conventions Give the Consent ^^71 

the federal legislature, in exercising each valid federal 
power. These existing facts, respectively of vast im¬ 
portance to the citizens of each state and to its 
government, influenced, more than any other facts, 
the framing of the new Articles, particularly the First 
Article, at Philadelphia and the opposition to those 
Articles in the conventions in which the people of 
America assembled. 

The First Article, as we know it, starts with the 
explicit statement that all national powers, which are 
granted by Americans in that Constitution, are granted 
to the only American legislature. Congress. It then 
provides how the members of each of the two bodies 
in that legislature shall be elected. It then enumerates 
the granted powers, confining them to specific subjects 
of interference with the human freedom of the Ameri¬ 
can citizen. It then, for the particular security of that 
human freedom, imposes specific restraints upon that 
legislature even in the exercise of its granted national 
powers. Finally, it prohibits the further exercise of 
specific powers by any state government. 

No American, who reads the debates of the Phila¬ 
delphia Convention of 1787, can fail to realize that 
the grant of any national power,—power to interfere 
with human freedom —is the constitution of govern¬ 
ment. The First Article was the subject of almost 
all the discussion of those four months at Philadelphia. 
Seemingly invincible differences of desire and opinion, 
as to who should elect and the proportion (for citizens 
of the new nation and for states of the continuing 
federation) in which there should be elected the mem¬ 
bers of the legislature which was to exercise the 
granted national powers, almost ended the effort of 
that Convention. This was in the early part of July. 


72 


Citizen or Subject? 


For exhausting days patriotic men had struggled to 
reconcile the conflict of desire and opinion in that 
respect. One element, mainly from the larger states, 
insisted that the members (from each state) of both 
branches of the new legislature should be proportioned 
to the number of Americans in that state. The other 
element, mainly from the smaller states, insisted that 
the Americans in each state should‘have an equal rep¬ 
resentation in each branch of the new legislature. Each 
element was further divided as to who should choose 
the members of that legislature. Some held that the 
people should choose every member. Others held that 
the state legislatures should choose every member. 
Still others held that each state should, by its legisla¬ 
ture, choose the members of one branch, so that those 
members might speak for that state, and that the 
American people themselves, divided into districts, 
should choose the members of the other branch, so 
that those members might speak for the general citi¬ 
zens of America. 

Mason of Virginia, later one of the great opponents 
of the adoption of all the Articles, insisted that election 
by the people was ‘^the only security for the rights of 
the people.” (5 Ell. Deb. 223.) 

Madison “considered an election of one branch, at 
least of the legislature by the people immediately, as a 
clear principle of free government.” (5 Ell. Deb. 
161.) 

Wilson of Pennsylvania “wished for vigor in the 
government, but he wished that vigorous authority to 
flow immediately from the legitimate source of all 
authority.” (5 Ell. Deb. 160.) Later he said, “If 
we are to establish a national government, that govern¬ 
ment ought to flow from the people at large. If one 


The Conventions Give the Consent ^73 

branch of it should be chosen by the legislatures, and 
the other by the people, the two branches will rest on 
different foundations, and dissensions will naturally 
arise between them.” (5 EIL Deh. 167.) 

Dickenson of Delaware “considered it essential that 
one branch of the legislature should be drawn imme¬ 
diately from the people, and expedient that the other 
should be chosen by the legislatures of the states.” 
(5 EIL Deb. 163.) 

Gerry of Massachusetts, consistent Tory in his 
mental attitude toward the relation of government to 
people, insisted that “the commercial and moneyed 
interest would be more secure in the hands of the state 
legislatures than of the people at large. The former 
have more sense of character, and will be restrained 
by that from injustice.” (5 Ell. Deh. 169.) 

On June 25, Wilson, at some length, opposed the 
election of senators by the state legislatures. He stated 
that: “He was opposed to an election by state legis¬ 
latures. In explaining his reasons, it was necessary to 
observe the two-fold relation in which the people 
would stand—first, as citizens of the general govern¬ 
ment; and, secondly, as citizens of their particular 
state. The general government was meant for them 
in the first capacity; the state governments in the 
second. Both governments were derived from the 
people; both meant for the people; both there¬ 
fore ought to be regulated on the same princi¬ 
ples. . . . The general government is not an assem¬ 
blage of states, but of individuals, for certain political 
purposes. It is not meant for the states, but for the 
individuals composing them; the individuals, therefore, 
not the states, ought to be represented in it” (5 
Ell. Deh. 239.) 


74 


Citizen or Subject? 


There came a day, early in that memorable July, 
when all hope of continuing the Convention was almost 
abandoned, by reason of the difference of desire and 
opinion on this one subject. Let us average Americans 
of this ‘generation remember that this one subject was 
merely the decision whether the people were to choose 
all the members of the legislature which was to exercise 
granted national powers to interfere with the human 
freedom of the citizens of America. Happily for all 
of us, there were many patriotic as well as able leaders 
at Philadelphia. From their patriotism and ability 
they evolved the compromise, on that question, which 
is expressed in their First Article. When it came from 
Philadelphia, it provided that each state should have 
equal representation in the Senate, senators to be 
chosen by the state legislatures, and that the House of 
Representatives should consist of members chosen 
directly by the citizens of America, in districts propor¬ 
tioned to the number of those citizens in it. 

No one has read the recorded debates of the Con¬ 
vention which proposed and the conventions which 
adopted our Constitution without learning that the 
Americans in those conventions knew that the grant 
of enumerated national powers in the First Article 
WAS the constitution of the American government of 
men. In and out of the Philadelphia Convention, the 
greatest and most persistent attack upon its proposal 
was the insistent claim that it had acted wholly without 
authority in proposing an Article which purported to 
grant any such national power to interfere with the 
human freedom of all Americans. Since July 4, 1776, 
no legislature or legislatures in the world had pos¬ 
sessed any national powers over all Americans. The 
Americans in each existing nation elected every mem- 


The Conventions Give the Consent 7^ 

ber of the one legislature which had any such power 
over them. It was felt and stated at Philadelphia, it 
was felt and urged and insisted upon, sometimes with 
decency and reason, sometimes with bitterness and 
rancor and hatred, between the closing day at Phila¬ 
delphia and the assembling of various Americans in 
each state, that the Americans in each state would be 
unwilling to give any such national power over them¬ 
selves to any legislature whose members were not all 
elected by the people in that state. In all the conven¬ 
tions which adopted the Constitution, the one great 
object of attack was the grant even of enumerated 
powers of a national kind to a legislature whose mem¬ 
bers would not all be chosen by the Americans in the 
state in which the convention was held. The record 
of the Virginia convention fills one entire volume of 
Elliot’s Debates. Almost one-half of the pages of that 
volume are claimed by the eloquent attacks of Patrick 
Henry upon those grants of enumerated powers in that 
First Article. The basis of all his argument was the 
fact that this grant of national power in the First 
Article would make him and all his fellow Virginians, 
for the first time since the Declaration of Indepen¬ 
dence, citizens of a nation —not Virginia —who must 
obey the laws of a legislature only some of whose 
members Virginians would elect. 

“Suppose,” he says, “the people of Virginia should 
wish to alter” this new government which governs 
them. “Can a majority of them do it? No; because 
they are connected with other men, or, in other words, 
consolidated with other states. When the people of 
Virginia, at a future day, shall wish to alter their gov¬ 
ernment, though they should be unanimous in this 
desire, yet they may be prevented therefrom by a 


Citizen or Subject? 


76 

despicable minority at the extremity of the United 
States. The founders of your own Constitution made 
your government changeable: but the power of chang¬ 
ing It Is gone from you. Whither Is It gone? It Is 
placed In the same hands that hold the rights of twelve 
other states; and those who hold those rights have 
right and power to keep them. It Is not the particular 
government of Virginia: one of the leading features of 
that government is, that a majority can alter It, when 
necessary for the public good. This govermnent Is not 
a Virginian, but an American government.” (3 EIL 
Deb. 55.) 

How forceful and effective was this objection, we 
average Americans of this generation may well realize 
when we know that the Constitution was ratified In 
Virginia by the scant majority of ten votes. In New 
York and Massachusetts and other states, the adoption 
was secured by similar small majorities. In North 
Carolina, the first convention refused to adopt at all. 

Furthermore, It Is recorded history that. In Massa¬ 
chusetts, In Virginia, In New York, and elsewhere, the 
vote of the people would have been against the adop¬ 
tion of the Constitution, If a promise had not been 
made to them by the advocates of the Constitution. It 
was the historic promise that Congress, under the 
mode of procedure prescribed In Article V, would pro¬ 
pose new declaratory Articles, suggested by the various 
conventions and specifically securing certain reserved 
rights and powers of all Americans from all ability of 
government to Interfere therewith. This historic 
promise was fulfilled, when the first Congress of the 
new nation proposed the suggested declaratory Arti¬ 
cles and ten of them were adopted. These are the 
Articles now known as the first ten Amendments. It 


The Conventions Give the Consent 77 

has been settled beyond dispute, in the Supreme Courl, 
that every one of the declarations in these ten Articles 
was already in the Constitution when it was originally 
adopted by the citizens of America. 

The most important declaration in those amazingly 
important ten declarations, which secured the adoption 
of our Constitution, is the plain statement that every 
national power to interfere with the human freedom of 
Americans, not granted in Article I, was reserved to 
the American people themselves in their capacity as 
the citizens of America. That is the explicit statement 
of what we know as the Tenth Amendment. In itself, 
that statement was but the plain and accurate echo of 
what was stated by the American people (who made 
the enumerated grants of such powers in Article I) in 
the conventions where they made those grants. Their 
statement was nowhere more accurately expressed, in 
that respect, than in the resolution of the Virginia 
Convention, which ratified the Constitution. That 
resolution began, “Whereas the powers granted under 
the proposed Constitution are the gift of the PEOPLE, 
and every power not granted thereby remains with 
THEM, and at THEIR will, etc.” (3 Eli, Deb. 653.) 

After the same statement had been expressly made 
(with authoritative effect as part of the original Con¬ 
stitution) in that Article which we know as the Tenth 
Amendment, it was again and again echoed, in the 
plainest language, from the Bench of the Supreme 
Court. 

As far back as 1795, in the case of Vanhorne’s 
Lessee vs. Dorrance, 2 Dali 304, Justice Patterson 
stated that the Constitution of England is at the mercy 
of Parliament, but “in America, the case is widely dif¬ 
ferent.” ... A Constitution “is the form of govern- 


Citizen or Subject? 


78 

ment, delineated by the mighty hand of the people, in 
which certain first principles of fundamental laws are 
established. The Constitution is certain and fixed; it 
contains the permanent will of the people, and is the 
supreme law of the land; it is paramount to the power 
of the legislature, and can be revoked or altered only 
by the authority that made it. The life-giving principle 
and the death-dealing stroke must proceed from the 
same hand. . . . The Constitution fixes limits to the 
exercise of legislative authority, and prescribes the 
orbit within which it must move. . . . Whatever may 
be the case in other countries, yet in this there can be 
no doubt, that every act of the legislature, repugnant to 
the Constitution, is absolutely void.” 

To us average Americans, who have lived with 
those earlier Americans through the days in which they 
constituted their nation and distributed all granted 
national powers between governments in America and 
reserved all other general American national powers 
exclusively to themselves, the Virginia Resolution, the 
Tenth Amendment, and the quoted language of the 
Circuit Court are in strict conformity with the edu¬ 
cation we have received. 

What, however, are we to think of the Tory 
education of so many of oiir leaders and “constitu¬ 
tional” lawyers, who have calmly accepted and acted 
upon the amazing assumption that state governments 
in America can exercise and can grant to other govern¬ 
ments any or all general national powers to interfere 
with the human freedom of American citizens, includ¬ 
ing even the national powers expressly reserved by 
those citizens to themselves in the Tenth Amendment? 

If they adopt their familiar mental attitude that all 
these statements were made more than a hundred 


The Conventions Give the Consent 79 

years ago and have no meaning or weight now, we 
refer them to the Supreme Court, in 1907, when it 
stated: 

The powers the people have given to the General Gov¬ 
ernment are named in the Constitution, and all not there 
named, either expressly or by implication, are reserved TO 
THE PEOPLE and can be exercised only by them, or upon 
FURTHER grant from them. (Justice Brewer in Turner 
V. Williams, 194, U. S, 279.) 

For ourselves, we average Americans turn now to 
examine in detail how clearly the Americans at Phila¬ 
delphia in 1787 did know and obey the basic law of 
America that all national powers to interfere with in¬ 
dividual freedom are the powers of the people them¬ 
selves and can be exercised only by them or upon direct 
grant from them. We find their knowledge, in that 
respect, evidenced by an examination of the reasoning 
by which they reached the correct legal conclusion that 
their proposed grants of general national powers, in 
their First Article, could only be made by the citizens 
of America themselves, assembled in their “conven¬ 
tions”—that grants of such powers could not be made 
even by all the legislatures of the then independent 
states. 


CHAPTER VII 


PEOPLE OR GOVERNMENT?—CONVENTIONS OR 

LEGISLATURES ? 

It is no longer open to question that by the Constitution 
a nation was brought into being, and that that instrument 
was not merely operative to establish a closer union or 
league of states. (Justice Brewer, in Supreme Court, 
Kansas v. Colorado, 206 U. S. 46 at page 80.) 

TNSTRUCTED by living through the education of 
the earlier Americans to their making of that Con¬ 
stitution, we accurately know that they themselves, 
by their own direct action, brought that new nation 
into being. Through our course in their education, we 
have their knowledge that only the men, who are to be 
its first members, can create a new political society of 
men, which is exactly what any American nation is. 
“Individuals entering into society must give up a share 
of liberty to preserve the rest.” So said the letter 
which went from Philadelphia with the proposed Ar¬ 
ticles whose later adoption created the new nation and 
vested the delegated and enumerated national powers 
of its government to interfere with the liberty of its 
citizens, (i Ell. Deb. 17.) 

Furthermore, through our own personal experience, 
we understand how all societies of men are brought 
into being. There are few of us who have not partici¬ 
pated in the creation of at least one society of men. 
Most of us have personally participated in the creation 

80 


People or Government? 


8 / 


of many such societies. For which reason, we are 
quite well acquainted with the manner in which all 
societies of men are brought into being. We know 
that ourselves, the prospective members of the pro¬ 
posed society, assemble and organize it and become its 
first members and constitute the powers of its govern¬ 
ment to command us, its members, for the achievement 
of the purpose for which we create it. 

For one simple reason, the Americans, through 
whose education we have just lived, were “better 
acquainted with the science of government than any 
other people in the world.” That reason was their 
accurate knowledge that a free nation, like any other 
society of individuals, can be created only in the same 
manner and by its prospective members and that the 
gift of any national powers to its government can only 
be by direct grant from its human members. This is 
the surrender “of a share of their liberty, to preserve 
the rest.” 

The knowledge of those Americans is now our 
knowledge. For which reason, we know that they 
themselves created that new nation and immediately 
became its citizens and, as such, gave to its government 
all the valid and enumerated national powers of that 
government to interfere with their and our human 
freedom. We know that they did all these things, by 
their own direct action, “in the only manner, in which 
they can act safely, effectively or wisely, on such a sub¬ 
ject, by assembling in conventions.” 

Thus, whatever may have been the lack of knowl¬ 
edge on the part of our leaders and “constitutional” 
lawyers for the last five years, we ourselves know, with 
knowledge that is a certainty, that the ratifying con¬ 
ventions of 1787 and 1788 WERE the American people 


82 


Citizen or Subject? 


themselves or the citizens of the new nation, America, 
assembled in their respective states. 

Our Supreme Court has always had the same knowl¬ 
edge and acted upon it. 

The Constitution of the United States was ordained and 
established, not by the states in their sovereign capacities 
[the respective peoples or citizens of each State] but em¬ 
phatically, as the preamble of the Constitution declares, by 
“the people of the United States” [namely the one people 
of America]. ... It was competent to the people to in¬ 
vest the general government with all the powers which they 
might deem proper and necessary; to extend or restrain 
these powers according to their own good pleasure, and 
to give them a paramount and supreme authority. . . . 
The people had a right to prohibit to the states the exer¬ 
cise of any powers which were, in their judgment, incom¬ 
patible with the objects of the general compact [between 
the citizens or members of the new nation], to make the 
powers of the state governments, in given cases, subordin¬ 
ate to those of the nation, or to reserve to themselves those 
sovereign authorities which they might not choose to dele¬ 
gate to either. (Supreme Court, Martin v. Hunter’s 
Lessee, 1 Wheat. 304, at p. 324.) 

Instructed by experience, the American people, in the 
conventions of their respective states, adopted the present 
Constitution. . . . The people made the Constitution 
and the people can unmake it. It is the creature of their 
will, and lives only by their will. But this supreme and 
irresistible power to make or to unmake resides only in 
the whole body of the people, not in any subdivisions of 
them. (Marshall, in Supreme Court, Cohens v. Virginia, 

6 Wheat. 264.) 

The Constitution was ordained and established by the 
people of the United States for themselves, for their own 
government, and not for the government of the individual 
states. Each state established a constitution for itself, and 
in that constitution provided such limitations and restric¬ 
tions on the powers of its particular government as its 
judgment dictated. The people of the United States framed 
such a government for the United States as they supposed 


People or Government? 83 

best adapted to their situation, and best calculated to pro¬ 
mote their interests. The powers they conferred on this 
government were to be exercised by itself; and the limita¬ 
tions on power, if expressed in general terms, are naturally, 
and, we think, necessarily, applicable to the government 
created by the instrument. They are limitations of power 
granted in the instrument itself; not of distinct govern¬ 
ments, framed by different persons and for different pur¬ 
poses. (Marshall, in Supreme Court, Barron v. Mayor 
of Baltimore, 7 Peters, 243.) 

When the American people created a national legisla¬ 
ture, with certain enumerated powers, it was neither neces¬ 
sary nor proper to define the powers retained by the states. 
These powers proceed, not from the people of America, 
but from the people of the several states; and remain, after 
the adoption of the Constitution, what they were before, 
except so far as they may be abridged by that instrument. 
(Marshall, in the Supreme Court, Sturges v. Crownin- 
shield, 4 Wheat. 122.) 

We average Americans know and will remember the 
clear distinction, the substantial distinction, recognized 
by the great jurist, between “the people of America” 
and “the people of the several states,” although they 
happen to be the same human beings acting in different 
capacities, as members of different political societies 
of men. It is a matter of constant mention in the 
Supreme Court that we ourselves, in addition to our 
capacity as human beings, have two other distinct 
capacities, that of citizen of America and that of citi¬ 
zen of our respective state; that, as citizens of 
America, we alone validly give to its government any 
power to command us, and, as citizens of our particular 
state, we alone validly give to its government all its 
national power to command us. The decisions of the 
Supreme Court, in that respect, are mentioned else¬ 
where herein. Meanwhile, we average Americans 


84 


Citizen or Subject? 


understand these matters perfectly and will not forget 
them. We are quite accustomed, while retaining our 
status as free human beings, to be members of many 
different societies of men and, as the members of some 
particular society, to give to its government certain 
powers to interfere with our freedom. 

We have in our political system a government of the 
United States and a government of each of the several 
states. Each one of these governments is distinct from the 
others, and each has citizens of its own who owe it al¬ 
legiance, and whose rights, within its jurisdiction, it must 
protect. The same person may be at the same time a citizen 
of the United States and a citizen of a state, but his rights 
of citizenship under one of these governments will be dif¬ 
ferent from those he has under the other. . . . Experience 
made the fact known to the people of the United States 
they required a national government for national purposes. 

. . . For this reason, the people of the United States . . . 
ordained and established the government of the United 
States, and defined its powers by a Constitution, which they 
adopted as its fundamental law, and made its rules of action. 
The government thus established and defined is to some 
extent a government of the states in their political capacity. 

It is also, for certain purposes, a government of the people. 

Its powers are limited in number, but not in degree. 
Within the scope of its powers, as enumerated and defined, 
it is supreme and above the states; but beyond, it has no 
existence. It was erected for special purposes and en¬ 
dowed with all the powers necessary for its own preserva¬ 
tion and the accomplishment of the ends its people had in 
view. . . . The people of the United States resident 
within any state are subject to two governments, one state, 
and the other national; but there need be no conflict be¬ 
tween the two. Powers which one possesses, the other does 
not. They are established for different purposes, and have 
separate jurisdictions. Together they make one whole, and 
furnish the people of the United States with a complete 
government, ample for the protection of all their rights 
at home and abroad. (Justice Waite, in Supreme Court, 
United States v. Cruikshank, 92 U. S. 542.) 


People or Government? 


85 


It must seem remarkable to us average Americans, 
with the education we have acquired at this point, to 
realize that oiir leaders and “constitutional” lawyers 
have not known why only we ourselves. In our capacity 
as citizens of America, can give any new national 
power to Interfere with our freedom and that we, for 
such new giving, must act. In the only way In which the 
citizens of America *^can act safely, effectively, 
or wisely, on such a subject, by assembling In conven¬ 
tion,” In our respective states, the very “conventions” 
mentioned for valid grant of such national power In 
the Fifth Article of the Constitution made by the citi¬ 
zens of America, so assembled In such “conventions.” 
Before dwelling briefly upon the accurate appreciation 
of that legal fact displayed by those first citizens In 
everything connected with the making of that Consti¬ 
tution and that Fifth Article, let us realize how well 
the leaders and great constitutional lawyers of other 
American generations between that day and our own 
did know this settled legal fact. 

After the Americans in nine states had created the 
new nation and had become Its citizens and had (In 
that capacity) granted the national powers of Its First 
Article, the Americans In Virginia assembled to de¬ 
termine whether they also would become citizens of 
the new nation. As the president of the convention. 
In which they assembled, they chose Edmund Pendle¬ 
ton, then Chancellor of Virginia. 

Very early In the debates, Henry and Mason, great 
opponents of the Constitution, attacked it on the 
ground that Its Preamble showed that It was to be 
made by the people of America and not by the states, 
each of which was then an Independent people. Henry 
and Mason wanted those peoples to remain inde- 


86 


Citizen or Subject? 


pendent. They wanted no new nation but a continu¬ 
ance of a mere union of independent nations. They 
knew that a constitution of government ordained/and 
established by the one people of Arnerica, assembled 
in their respective “conventions,” as the Preamble of 
this Constitution showed it to be, created an American 
nation and made the ratifying Americans, in each state, 
the citizens of that new nation. For this reason, the 
opening thunder of Henry’s eloquence was on that 
Preamble. “My political curiosity, exclusive of my 
anxious solicitude for the public welfare, leads me to 
ask. Who authorized them to speak the language of 
We, the people, instead of. We, the states? States are 
the characteristics and the soul of a confederation. If 
the states be not the agents of this compact. It must be 
one great, consolidated, national government, of the 
people of all the states.” (Henry, 3 Ell. Deb. 22.) 

The learned Pendleton, sound in his knowledge of 
basic American law and quick to grasp the plain mean¬ 
ing of the Fifth Article of the new Constitution, quickly 
answered Henry. “Where is the cause of alarm? We, 
the people, possessing all power, form a government, 
such as we think will secure happiness; and suppose, 
in adopting this plan, we should be mistaken in the 
end; where Is the cause of alarm on that quarter? In 
the same plan we point out an easy and quiet method 
of reforming what may be found amiss. No, but say 
gentlemen, we have put the introduction of that 
method In the hands of our servants, who will Inter¬ 
rupt it for motives of self-interest. What then? . . . 
Who shall dare to resist the people? No, we will 
assemble In convention; wholly recall our delegated 
powers or reform them so as to prevent such abuse; 
and punish those servants who have perverted 


People or Government? 87 

powers, designed for our happiness, to their own 
emolument. . . . But an objection Is made to the 
form; the expression. We, the people. Is thought im¬ 
proper. Permit me to ask the gentlemen who made 
this objection, WHO BUT THE people can delegate 
POWERS? Who but the people have the right to form 
government? . . . What have the state govern¬ 
ments to do with itf* (3 Ell, Deh. 37.) 

We average Americans know and will remember 
that this learned American lawyer, only twelve years 
earlier a subject of an omnipotent legislature, already 
knew the basic American principle to be that the dele¬ 
gation of national power was the constitution of gov¬ 
ernment of a free people and that only the people, 
assembled In convention, could delegate such power 
and that the state governments, under basic American 
law, never can have the ability to delegate that kind 
of power. We regret that our “constitutional” law¬ 
yers, all born free citizens of a free republic, have not 
the same accurate knowledge of basic American law. 

But the knowledge of Henry and of Pendleton, that 
the document under consideration was the Constitution 
of a nation whose citizens alone could give to Its gov¬ 
ernment any valid power to Interfere with their human 
freedom, was the knowledge of all in that and the 
other “conventions,” In which the one people of 
America assembled and adopted that Constitution. 
Let us note another distinct type In that Virginia con¬ 
vention, the famous Light-horse Harry Lee of the 
Revolution. “Descended from one of the oldest and 
most honorable families In the colony, a graduate of 
Princeton College, one of the most daring, picturesque, 
and attractive officers of the Revolution, In which by 
sheer gallantry and military genius he had become 


88 


Citizen or Subject? 


commander of a famous cavalry command, the gallant 
Lee was a perfect contrast to the venerable Pendle¬ 
ton.” (Beveridge, Life of Marshall, Vol. i, page 
387.) Lee also replied to Henry’s attack on the ex¬ 
pression “We, the people” and not “We, the states.” 
In his reply, there was shown the same accurate 
knowledge of basic American law. “This expression 
was introduced into that paper with great propriety. 
This system is submitted to the people for their con¬ 
sideration, because on them it is to operate, if adopted. 
It is not binding on the people until it becomes their 
act.” (3 Ell. Deh. 42.) 

In the Massachusetts convention. General William 
Lleath, another soldier of the Revolution, showed his 
accurate conception of the legal fact of which we 
average Americans have just been reading in the de¬ 
cisions of our Supreme Court. “Mr. President, I 
consider myself not as an inhabitant of Massachusetts, 
but as a citizen of the United States.” (2 Ell. Deb. 
12.) 

In the North Carolina convention, William Goudy 
seems to have had some prophetic vision of our own 
immediate day. Speaking of the document under dis¬ 
cussion and clearly having in mind its First Article, this 
is the warning he gave us: “Its intent is a concession of 
power, on the part of the people, to their rulers. We 
know that private interest governs mankind generally. 
Power belongs originally to the people; but if rulers 
[all governments] be not well guarded, that power 
may be usurped from them. People ought to be 
cautious in giving away power. . . . Power is gen¬ 
erally taken from the people by imposing on their 
understanding, or by fetters.” (4 Ell. Deb. 10.) 

In that same North Carolina convention, James 


People or Government? 


89 


Iredell, later a distinguished judge of our Supreme 
Court, in replying to the common attack that the Con¬ 
stitution contained no Bill of Rights, displayed clearly 
the general accurate knowledge that. In America, any 
grant of national power to Interfere with human free¬ 
dom is the constitution of government and that the 
citizens of any nation In America are not citizens but 
subjects, if even a single power of that kind is exercised 
by government without Its grant directly from the 
citizens themselves, assembled In their conventions. 
“Of what use, therefore, can a Bill of Rights be in this 
Constitution, where the people expressly declare how 
much power they do give, and consequently retain all 
that they do not? It is a declaration of particular 
powers by the people to their representatives, for par¬ 
ticular purposes. It may be considered as a great 
power of attorney, under which no power can be exer¬ 
cised but what Is expressly given.” (4 Ell. Deb. 148.) 

When we average Americans read the debates of 
those human beings, the first citizens of America, one 
thing steadily amazes us, as we contrast It with all that 
we have heard during the past five years. Some of 
those first citizens were distinguished lawyers or states¬ 
men, quite well known to history. Some of them bore 
names, then distinguished but now forgotten. Most 
of them, even at that time, were quite unknown outside 
of the Immediate districts whence they came. All of 
them, twelve years earlier, had been “subjects” In an 
empire whose fundamental law was and Is that Its legis¬ 
lative government can exercise any power whatever to 
Interfere with human freedom and can delegate any 
such power to other governments In that empire. The 
object of the American Revolution was to change that 
fundamental law, embodying the Tory concept of the 


90 


Citizen or Subject? 


proper relation of government to human being, into 
the basic law of America, embodying the American 
concept of that relation declared in the great Statute 
of ’76, that no government can have any power of 
that kind except by direct grant from its own citizens. 
During that Revolution, human beings in America, in 
conformity with their respective beliefs in the Tory or 
the American concept of the relation of human being 
to government, had been divided into what history 
knows as the Tories and the Americans. Many of the 
human beings, assembled in those conventions of ten 
or twelve years later, had been sincere Tories in the 
days of the Revolution. 

Yet, if we average Americans pick up any volume 
of their recorded debates in those “conventions,” we 
cannot scan a few pages anywhere without finding the 
clearest recognition, in the minds of all, that the 
American concept had become the basic American law, 
that the Tory concept had disappeared forever from 
America. All of them knew that, so long as the 
Statute of ’76 is not repealed and the result of the 
Revolution not reversed, no legislatures in America 
can exercise any power to interfere with human free¬ 
dom, except powers obtained by direct grant from the 
human beings over whom they are to be exercised, and 
that no legislatures can give to themselves or to an¬ 
other legislature any such power. It was common 
in those “conventions” of long ago to illustrate some 
argument by reference to this admitted legal fact and 
the difference between the fundamental law of Great 
Britain and of America, in these respects. In that 
North Carolina convention, the same Iredell, after 
pointing out that the American concept of the relation 
of citizen to all governments had become basic Amer- 


People or Government? 


91 


ican law, contrasts that fact with the fundamental law 
of Great Britain where “Magna Charta itself is no 
constitution, but a solemn instrument ascertaining cer¬ 
tain rights of individuals, hy the legislature for the 
time being; and every article of which the legislature 
may at any time alter.” (4 Ell. Deb. 148.) 

In the Pennsylvania convention, on December i, 
1787, one of the most distinguished lawyers of that 
generation made a memorable speech, expressing the 
universal knowledge that the American concept had 
taken forever the place of the Tory concept in funda¬ 
mental American law. We commend a careful study 
of that speech to those of our public leaders and “con¬ 
stitutional” lawyers, who for five years have been 
acting on the assumption that the Tory concept has 
again become our fundamental American law. We 
average Americans, after living with those earlier 
Americans, are not surprised to listen to the statements 
of Wilson. “The secret is now disclosed, and it is 
discovered to be a dread, that the boasted state sov¬ 
ereignties will, under this system, be disrobed of part 
of their power. . . . Upon what principle is it 
contended that the sovereign power resides in the 
state governments? . . . The proposed system 

sets out with a declaration that its existence depends 
upon the supreme authority of the people alone. . . . 
When the principle is once settled that the people are 
the source of authority, the consequence is, that they 
may take from the subordinate governments powers 
which they have hitherto trusted them, and place those 
powers in the general government, if it is thought that 
there they will be productive of more good. They 
can distribute one portion of power to the more con¬ 
tracted circle, called state governments; they can also 


92 


Citizen or Subject? 


furnish another proportion to the government of the 
United States. Who will undertake to say, as a state 
officer, that the people may not give to the general 
government what powers, and for what purposes, they 
please? How comes it, sir, that these state govern¬ 
ments dictate to their superiors—to the majesty of the 
people?’’ (2 EIL Deb. 443.) 

We average Americans, legally bound (as Amer- 
ican citizens) by no command (interfering with our 
human freedom) except from our only legislature at 
Washington and then only in those matters in which 
we ourselves, the citizens of America, have directly 
given it power to command us, now intend insistently 
to ask all our governments, the supreme one at Wash¬ 
ington and the subordinate ones in the states of which 
we are also citizens, exactly the same question which 
Wilson asked. 

Daniel Webster asked almost exactly the same ques¬ 
tion of Hayne and history does not record any answer 
deemed satisfactory by the American people. Webster 
believed implicitly in the concept of American law 
stated by those who made our Constitution. Like 
them, and unlike our “constitutional” lawyers, he knew 
that the Tory concept of the relation of men to their 
government had disappeared from American basic law. 

“This leads us to inquire into the origin of this 
government, and the source of its power. Whose agent 
is it? Is it the creature of the state legislatures, or 
the creature of the people? ... It is, sir, the 
people’s constitution, the people’s government—made 
for the people, made by the people, and answerable to 
the people. The people of the United States have 
declared that this Constitution shall be the supreme 
law. We must either admit the proposition, or dispute 


People or Government? 


93 


their authority. The states are, unquestionably, sov¬ 
ereign, so far as their sovereignty is not affected by 
this supreme law. But the state legislatures, as polit¬ 
ical bodies, however sovereign, are yet not sovereign 
over the people. . . . The national government 
possesses those powers which it can be shown the peo¬ 
ple have conferred on it, and no more. . . . We 
are here to administer a Constitution emanating imme¬ 
diately from the people, and trusted by them to our 
administration. . . . This government, sir, is the 
independent offspring of the popular will. It is not 
the creature of state legislatures; nay, more, if the 
whole truth must be told, the people brought it into 
existence, established it, and have hitherto supported 
it, for the very purpose, amongst others, of imposing 
certain salutary restraints on state sovereignties. 
. . . The people, then, sir, erected this govern¬ 
ment. They gave It a constitution, and In that con¬ 
stitution they have enumerated the powers which they 
bestow upon It. . . . Sir, the very chief end, 

the main design for which the whole constitution was 
framed and adopted, was to establish a government 
that should not be obliged to act through state agency, 
depend on state opinion and state discretion. . . . 
If anything be found In the national constitution, 
either by original provisions, or subsequent interpreta¬ 
tion, which ought not to be in it, the people know how 
to get rid of It. If any construction be established, 
unacceptable to them, so as to become practically a 
part of the constitution, they will amend It at their 
own sovereign pleasure. But while the people choose 
to maintain It as It Is—while they are satisfied with it, 
and refuse to change It— who has given, or who can 
give, to the state legislatures a right to alter It, either 


94 


Citizen or Subject? 


by interference, construction, or otherwise?. . . . 
Sir, the people have not trusted their safety, in regard 
to the general constitution, to these hands. They have 
required other security, and taken other bonds.” (From 
Webster’s reply to Hayne, U. S. Senate, January, 1830. 
4 Ell. Deb. 498 et seq.) 

We average Americans, now educated in the experi¬ 
ence of the average American from 1776 to the be¬ 
ginning of 1787, find much merit and comfort in 
Webster’s understanding of basic American law. He 
had a reasoned and firm conviction that Americans 
really are citizens and not subjects. His conviction, 
in that respect, while opposed to the convictions of our 
leaders and “constitutional” lawyers, has seemed to 
us quite in accord with the convictions of earlier leaders 
such as Iredell and Wilson and the others, and also 
with the decisions of our Supreme Court. 

Briefly stated, it has become quite clear to us that 
the American people, from 1776 to 1787, were fixed 
in their determination to make our basic American 
law what the conviction of Webster and the leaders 
of every generation prior to our own knew it to be. 
Let us go back, therefore, to the Americans in the 
Philadelphia convention of 1787, who worded the 
Constitution which is the supreme law of America, 
and ascertain how their knowledge of fundamental 
American law dictated the wording of their proposed 
Seventh Article, 


CHAPTER VIII 


PHILADELPHIA ANSWERS “CONVENTIONS, NOT 

legislatures” 

W E recall how clearly the Americans at Phila¬ 
delphia, in 1787, knew that any grant of national 
power to interfere with the freedom of individuals 
was the constitution of government. We recall the 
bitter conflict of opinion, threatening the destruction 
of the assembly, over the manner of choosing the mem¬ 
bers of the legislature to exercise whatever powers 
of that kind the citizens of America might grant. We 
recall the great opposition to the proposal of a grant 
of any power of that kind and to the particular pro¬ 
posal of each of the enumerated powers of that kind, 
all embodied in the First Article. 

We have thus come to know with certainty that the 
minds of the Americans at Philadelphia, during those 
strenuous four months, were concentrated mainly upon 
a proposal to grant some national power to interfere 
with the human freedom of all Americans. In other 
words, we have their knowledge that their proposed 
First Article, by reason of its grants of such power, 
would constitute a new nation and government of men, 
if those grants were validly made by those competent 
to make such grants. 

Under which circumstances, we realize that it be¬ 
came necessary for them to make a great legal de¬ 
cision, in the construction of basic American law, and, 

95 


Citizen or Subject? 


96 

before making that decision, which was compelled to 
be the result of judgment and not of will, accurately to 
ascertain one important legal fact. Indeed, their de¬ 
cision was to be the actual conclusion reached in the 
effort to ascertain that legal fact. This was the single 
question to which they must find the right answer: 
“Under our basic American law, can legislatures ever 
give to government any power to interfere with the 
human freedom of men, or must every government in 
America obtain its only valid powers of that kind by 
direct grant from its own citizens?” 

It is easy for us to state that they should have 
known that the answer to that question was expressly 
and authoritatively given in the Statute of ’76. It was 
there plainly enacted that every just power of any gov¬ 
ernment must be derived from the direct grant of those 
to be governed by its exercise. Yet our own leaders 
for the last five years have not even asked the question, 
much less known the right answer. 

At Philadelphia, in 1787, they did know it. They 
had no doubt whatever about it. We shall see that 
quickly In our brief review of the record they made at 
Philadelphia in ascertaining and deciding, as a legal 
necessity, to whom their First Article and its enumer¬ 
ated grants of national power must be sent and, when 
we boast of how quickly we knew the answer, we 
should admit that we did not know It until after we had 
lived again with them through their experience of the 
preceding ten or twelve years which had educated 
them, as It has just educated us, to that knowledge. 
Furthermore, many of us average Americans will be 
unable to explain, until later herein, why, during the 
last five years, our own leaders have not known the 
right answer. The Statute of ’76 has not been wholly 


“Conventions, Not Legislatures” 97 

unknown to them. The record of the Philadelphia 
Convention and the ratifying conventions has not been 
entirely a closed book to them. The important and 
authentic statements of Webster and other leaders of 
past generations have been read by many of them. If 
they did not understand and know the correct answer, 
as we now realize they have not known, let us not with¬ 
hold from the Americans at Philadelphia our just 
tribute of gratitude that they did accurately know, 
when it was amazingly important to us that they should 
know. 

When those Americans came to answer that ques¬ 
tion, there were facts which might have misled them 
as other similar facts of lesser importance have un¬ 
doubtedly misled our leaders. 

In 1776, from that same Philadelphia had gone a 
suggestion that a constitution of government, with Ar¬ 
ticles granting power to government, be made in each 
former colony. In 1787, there had gone from that 
same Philadelphia a proposal that a constitution of a 
general government for America be made, with Ar¬ 
ticles granting power to that government. The 
proposal of 1776 had suggested that the proposed 
Articles be made by the people themselves, assembled 
in conventions. The proposal of 1777 had suggested 
that the proposed Articles be made by the legislative 
governments of the states. Both proposals, even as 
to the makers of the respective Articles, had been acted 
upon. All the Articles, although some had been made 
by the people themselves and others by legislatures, 
had been generally recognized as valid law. Some of 
the men at Philadelphia in 1787 had been members of 
the proposing Second Continental Congress, when the 
respective proposals of 1776 and 1777 had gone from 


Citizen or Subject? 


98 

Philadelphia. When, in 1787, they were called upon 
to find and state, as their legal decision, the correct 
answer to their important question, it was necessary 
for them to ascertain, as between state “legislatures” 
and the people themselves, in “conventions,” which 
could validly make the Articles which had been worded 
and were about to be proposed. It would not, there¬ 
fore, have been beyond the pale of our own experience 
if the earlier proposals had misled them and they had 
made the wrong answer to the question which con¬ 
fronted them. Furthermore, as we have already 
noted, although we can little realize the influence of 
such a fact upon men seeking the correct legal answer 
to an important question, their whole proposal was a 
new adventure for men on an uncharted sea of self- 
government. Under all of which circumstances, let us 
again pay them their deserved tribute that they went 
unerringly to the only correct answer. 

We know that the essence of that answer is ex¬ 
pressed in the Seventh Article proposed from Phila¬ 
delphia. Only one answer was possible to Americans 
of that generation. They had been “subjects” and had 
become “citizens.” They knew the vital distinctions 
between the two relations to government. 

The Convention which framed the Constitution was, 
indeed, elected by the state legislatures. But the instru¬ 
ment, when it came from their hands, was a mere pro¬ 
posal, without obligation, or pretensions to it. It was re¬ 
ported to the then existing Congress of the United States, 
with the request that it might “be submitted to a con¬ 
vention of delegates, chosen in each state by the people 
thereof, under the recommendation of its legislature, for 
their assent and ratification.” This mode of proceeding 
was adopted; and by the Convention, by Congress, and 
by the state legislatures, the instrument was submitted to 


“Conventions, Not Legislatures” 


99 


the people. They acted upon it in the only manner in 
which they can act safely, effectively, and wisely, on such 
a subject, by assembling in convention. It is true, they 
assembled in their several states; and where else should 
they have assembled? No political dreamer was ever wild 
enough to think of breaking down the lines which separate 
the states, and of compounding the American people into 
one common mass. Of consequence, when they [the Ameri¬ 
can people] act, they act in their states. But the measures 
they adopt do not, on that account, cease to. be the meas¬ 
ures of the people themselves, or become the measures of 
the state governments. From these conventions the Con¬ 
stitution [the First Article grants of power to interfere 
with individual freedom^ derives its whole authority. The 
government proceeds directly from the people; is “or¬ 
dained and established” in the name of the people. . . . 

It required not the affirmance, and could not be negatived, 
by the state governments. ... To the formation of a 
league, such as was the Confederation, the state sovereign¬ 
ties were certainly competent. 

But, when a general government of America was to 
be given any national power to interfere with the indi¬ 
vidual freedom of its citizens, as in the First Article 
of 1787 and in the Eighteenth Amendment of 1917, 

acting directly on the people, the necessity of referring 
it to the people, and of deriving its powers directly from 
them, was felt and acknowledged by all. The government 
of the Union, then, (whatever may be the influence of 
this fact on the case,) is, emphatically, and truly, a gov¬ 
ernment of the people. In form and in substance it eman¬ 
ates from them. Its powers are granted by them, and are 
to be exercised directly on them, and for their benefit. 
(Marshall in the Supreme Court, M’Culloch v. Maryland, 

4 Wheat, 316.) 

Marshall was one of the Americans who had been 
at Valley Forge in 1778, and at other places whose 
sacrifices made it the basic law of America that all 


100 


Citizen or Subject? 


power over American citizens must be derived by 
direct grant from themselves. Later, he was promi¬ 
nent in the Virginia convention where all Americans in 
Virginia knew and acted upon this basic law. These 
facts qualified him to testify, from the Bench of the 
Supreme Court, that all Americans then knew and 
acknowledged the binding command of that basic law. 

Under such circumstances, it was impossible that the 
Americans at Philadelphia should not have known and 
obeyed that law in the drafting of their proposed 
Seventh and Fifth Articles. Both of these Articles, 
the Seventh wholly, and the Fifth partly, deal with the 
then future grant of national power over the people and 
its only legal gift by direct grant from the people them¬ 
selves, assembled in their “conventions.” Both Ar¬ 
ticles name the people of America, by the one word 
“conventions.” 

That Philadelphia should not have strayed from the 
legal road clearly marked by the Statute of ’76 was 
certain when we recall how large a part Madison 
played at Philadelphia, and particularly how he per¬ 
sonally worded and introduced, in the closing hours 
at Philadelphia, what we know as its Fifth Article. 
As to his personal knowledge of this basic law, we 
recall his letter of April, 1787, where he said, “To give 
the new system its proper energy, it will be desirable 
to have it ratified by the authority of the people, and 
not merely by that of the legislatures.” And we recall 
his later words, when urging Americans to adopt the 
Constitution with its Fifth and Seventh Articles, he 
said of the Seventh, “This Article speaks for itself. 
The express authority of the people alone could give 
due validity to the Constitution,” to its grants of power 
over the people in its First Article. {Fed. No. 43.) 



«( < 


“Conventions, Not Legislatures” ioi 

That we may fix firmly in our own minds the knowl¬ 
edge which all Americans then had, which our lead¬ 
ers never acquired or have entirely forgotten, let us 
briefly review what the earlier Americans did at Phila¬ 
delphia in obedience to that knowledge of basic Ameri¬ 
can law. 

On May 28, Randolph of Virginia “opened the 
main business” of the Convention. He proposed fif¬ 
teen resolutions embodying the suggestion of what 
should be in the different Articles. Resolution Num¬ 
ber 15 was that such Articles should be submitted to 
^^conventions “to be expressly chosen by the people, 
CO consider and decide thereon.” (5 Ell. Deb. 128.) 

The first short debate on this Resolution took place 
on June 5. In it Madison stated that he “thought this 
provision essential. The Articles of Confederation 
themselves were defective in this respect, resting, in 
many of the states, on the legislative sanction only.” 
The resolution was then postponed for further con¬ 
sideration. On June 12, “The question was taken on 
the 15th Resolution, to wit, referring the new system 
to the people of the United States for ratification. It 
passed in the affirmative.” (5 Ell. Deb. 183.) This 
was all in the Committee of the Whole. 

On June 13, that Committee made their full report, 
in which the Randolph Resolution Number 15 was em¬ 
bodied in words as Resolution Number 19 of the 
report. On June 16, while the Convention was again 
sitting as a Committee of the Whole, the great struggle 
was on between the conflicting opinions as to how and 
in what proportion should be elected the future legis¬ 
lators who were to exercise the granted powers over 
Americans. On that day, the discussion centered on 
the relative merits of the Randolph national proposals 


102 Citizen or Subject? 

and a set of federal Articles amending the existing 
Federal Constitution. In supporting Randolph, Wil¬ 
son of Pennsylvania stated that “he did not fear that 
the people would not follow us into a national govern¬ 
ment; and it will be a further recommendation of Mr. 
Randolph’s plan that it is to be submitted to them, and 
not to the legislatures, for ratification.” (5 Ell Deb. 
196.) 

On July 23, Resolution Number 19 came up for 
action. Remembering how insistent many of the dele¬ 
gates were that the general government should be kept 
a purely federal one, it is not surprising to find Oliver 
Ellsworth of Connecticut opening the short debate 
with a motion that the Constitution “be referred to 
the legislatures of the states for ratification.” But it 
will also be remembered that the powers to be granted 
in the new Articles had not yet been settled. The 
nationalists in the Convention, intent on having some 
national Articles, knew that the proposed ratification 
must be by the people themselves, “felt and acknowl¬ 
edged by all” to be the only competent grantors of 
national powers. 

Colonel Mason of Virginia “considered a reference 
of the plan to the authority of the people as one of 
the most important and essential of the resolutions. 
The legislatures have no power to ratify it. They are 
the mere creatures of the state constitutions, and 
cannot be greater than their creators. . . . Whither, 
then, must we resort? To the people, with whom all 
power remains that has not been given up in the con¬ 
stitutions derived from them. It was of great moment 
that this doctrine should be cherished, as the basis of 
free government.” (5 Ell. Deh. 352.) 

Rufus King of Massachusetts, influenced undoubt- 


“Conventions, Not Legislatures” 103 

edly by the error of thinking that the Convention 
meant to act within the Articles of Confederation, was 
inclined to agree with Ellsworth “that the legislatures 
had a competent authority, the acquiescence of the 
people of America in the Confederation being equiva¬ 
lent to a formal ratification by the people. ... At 
the same time, he preferred a reference to the 
authority of the people, expressly delegated to conven¬ 
tions, as the most certain means of obviating all 
disputes and doubts concerning the legitimacy of the 
new Constitution.” (5 Ell. Deb. 355.) 

Madison “thought it clear that the legislatures were 
incompetent to the proposed changes. These changes 
would make essential inroads on the state constitu¬ 
tions; and it would be a novel and dangerous doctrine, 
that a legislature could change the constitution under 
which it held its existence.” (5 Ell. Deb. 355.) 

Ellsworth’s motion to send to the state legislative 
governments, and not to the people themselves, assem¬ 
bled in “conventions,” was lost by a vote of seven to 
three. Resolution Number 19, that the new Articles 
must be sent to the people themselves was adopted by 
a vote of nine to one, Ellsworth and King both voting 
for it. (5 Ell. Deb. 35b.) 

This impressive discussion, now continued for over 
a month of 1787, with its display of accurate knowl¬ 
edge of the distinction between sending Articles to 
legislatures and *Wef erring*^ them to the people, makes 
quite amusing what we shall hear later in 1917. It 
will come from the counsel of the political organization 
which dictated that governments should make the sup¬ 
posed Eighteenth Amendment. After he kindly tells 
us that history has proven that these Americans of 
1787 “builded more wisely than they knew,” meaning 


104 Citizen or Subject? 

“than he knew,” he shall later impart to us the re¬ 
markable information that “the framers in the Con¬ 
stitutional Convention knew very little, if anything, 
about referendums.” 

The Resolutions, which had now become twenty- 
three in number, on July 26, were referred to the Com¬ 
mittee of Detail to prepare Articles in conformity 
therewith. On August 6, that Committee made its 
report of twenty-three worded Articles. In Article 
XXII was embodied the requirement that the Con¬ 
stitution should be submitted “to a convention chosen 
in each state, under the recommendation of its legis¬ 
lature, in order to receive the ratification of such 
convention.** This provision, the Philadelphia answer 
and always the only legal answer to the question as 
to who can validly grant power to interfere with 
individual freedom, was later seen not properly to 
belong in the Constitution itself. For which reason, 
it was taken out of the Constitution and embodied in 
a separate Resolution which went with the Constitution 
from Philadelphia. 

In Article XXI, the first draft of our Article VII, 
it was provided: “The ratification of the conventions 

of - states shall be sufficient for organizing this 

Constitution.” (5 Ell. Deb. 381.) 

The month of August was passed in the great de¬ 
bates on the proposed grants of national power and 
the other proposed Articles. When the Convention 
was drawing to a close on August 30, Articles XXI and 
XXII were reached. 

Gouverneur Morris of Pennsylvania “moved to 
strike out of Article XXI the words, 'conventions of 
the,’ after ‘ratification,’ leaving the states to pursue 
their own modes of ratification.” Rufus King “thought 



“Conventions, Not Legislatures” 105 

that striking out ^conventions,^ as the requisite mode, 
was equivalent to giving up the business altogether.” 
Madison pointed out that, “The people were, in fact, 
the fountain of all power.” The motion of Morris 
was beaten. An attempt was made to fill the blank in 
Article XXI with the word “thirteen.” “All the states 
were ‘No’ except Maryland.” The blank was then 
filled by the word “nine” the vote being eight to three. 
The two articles were then passed, the vote thereon 
being ten to one. (5 Ell. Deb. 499-502.) 

On September 10, the beginning of the last business 
week of the Convention, Gerry of Massachusetts 
moved to reconsider these two Articles. The short 
discussion was not in connection with any matter in 
which we are now interested. His motion was lost. 
The entire set of worded Articles was then referred to 
a committee for revising the style and arrangement of 
the Articles agreed upon. (5 Ell. Deb. 535.) 

On Wednesday, September 12, that Committee re¬ 
ported our Constitution, with its seven Articles, as we 
know them except for some slight changes made during 
the discussions of the last three or four days of the 
Convention. In these seven Articles, the language of 
the earlier Article XXII did not appear. As it really 
w'as the statement of the correct legal conclusion of the 
Convention that its proposed Articles, because they 
would grant power to interfere with individual free¬ 
dom, must necessarily be made by the people them¬ 
selves, its proper place was outside the Constitution 
itself and in a special Resolution of the same nature 
as every Congress resolution proposing an amendment 
to that Constitution. That was the view of the Com¬ 
mittee and, on Thursday, September 13, the Committee 
reported such special Resolutions, in the very words 


io6 Citizen or Subject? 

of the former Article XXII. “The proceedings on 
these Resolutions are not given by Mr. Madison, nor 
in the Journal of the Federal Convention. In the 
Journal of Congress, September 28, 1787, Volume 4, 
p. 781, they are stated to have been presented to that 
body, as having passed in the Convention on September 
17 immediately after the signing of the Constitution.” 
(5 Ell. Deb. 602.) 

This is the Resolution: 

“Resolved, That the preceding Constitution be laid 
before the United States In Congress assembled; and 
that it Is the opinion of this Convention, that It should 
afterwards be submitted to a convention of delegates 
chosen In each state by the people thereof, under the 
recommendation of Its legislature, for their assent and 
ratification; and that each convention, assenting to and 
ratifying the same, should give notice thereof to the 
United States in Congress assembled. 

“Resolved, That it is the opinion of this Conven¬ 
tion, that, as soon as the conventions of nine states 
shall have ratified this Constitution, the United States 
In Congress^assembled should fix a day, etc.” (5 Ell. 
Deb. 541.) 

This Resolution is the most authoritative statement 
of the legal conclusion reached by these leaders of a 
people then “better acquainted with the science of gov¬ 
ernment than any other people in the world.” The 
conclusion itself was compelled by accurate knowledge 
that the government of “citizens” can validly obtain 
only from the citizens themselves, by their direct grant, 
any power to Interfere with their Individual freedom. 
The expression of that knowledge. In the Resolution, 
Is, In many respects, one of the most Important re¬ 
corded legal decisions ever made In America. We 


“Conventions, Not Legislatures” 107 

average Americans, educated with those Americans at 
Philadelphia through their experience of the years 
between 1775 and 1787, cannot misunderstand the 
meaning and importance of that decision. Instructed 
by our review of their actions and their reasoning at 
Philadelphia in reaching that conclusion and making 
that legal decision, we know, with an accurate cer¬ 
tainty, that it was their declaration to the world and to 
us that no proposal from Philadelphia suggested that 
Americans again resume the relation of “subjects” to 
any government or governments. 

Our minds impressed with this accurate knowledge 
that such was not their purpose, we now prepare to 
complete our education as American citizens, not sub¬ 
jects, by reading the Philadelphia story and language 
of their Fifth Article, their only other Article which 
even partly concerned the future grant of new govern¬ 
ment power to interfere with individual American 
freedom. By reason of oiir education, we will then 
come to the reading of the language of this Article, 
as the Americans read it and understood it when they 
made it in their “conventions” that followed the pro¬ 
posing convention of Philadelphia. 

Being educated “citizens” and not “subjects,” we 
ourselves will no longer, as oiir leaders have done for 
five years, mistake the only correct and legal answer to 
the indignant outburst of Madison, who wrote this 
Fifth Article at Philadelphia. “Was, then, the Ameri¬ 
can Revolution effected, was the American Confeder¬ 
acy formed, was the precious blood of thousands spilt, 
and the hard-earned substance of millions lavished, not 
that the people of America should enjoy peace, liberty, 
and safety, but that the governments of the individual 
states, that particular municipal establishments, might 


io8 


Citizen or Subject? 


enjoy a certain extent of power, and be arrayed with 
certain dignities and attributes of sovereignty? We 
have heard of the impious doctrine In the Old World, 
that the people were made for kings, not kings for 
the people. Is the same doctrine to be revived In the 
New, In another shape—that the solid happiness of 
the people is to be sacrificed to the views of political 
institutions of a different form?” {Fed, No. 45.) 

The American answer, from the people of America 
assembled In the conventions that ratified that Fifth 
Article, was a clear and emphatic “No.” The Tory 
answer of the last five years, from our leaders and our 
governments, has been an Insistent “Yes.” 

No one, however, with any considerable degree of 
truthfulness, can assert that there has come from the 
American people themselves, during the last five years, 
any very audible “Yes.” To whatever extent indi¬ 
vidual opinions may differ as to the wisdom or legality 
of the new constitution of government of men, made 
entirely by governments, no unbiased observer has 
failed to note one striking fact. By a very extensive 
number of Americans otherwise law-abiding, Ameri¬ 
cans in all classes of society, the new government edict, 
the government command to “subjects,” has been 
greeted with a respect and obedience strikingly similar 
to the respect and obedience with which an earlier gen¬ 
eration of Americans received the Stamp Act and the 
other government edicts between 1765 and 1776. 

When the Americans of that earlier generation w^ere 
denounced by the government which had Issued those 
edicts to Its “subjects,” one of the latter, five years be¬ 
fore AmericansVeased to be “subjects” of that govern¬ 
ment, stated: “Is It a time for us to sleep when our 
free government Is essentially changed, and a new one 


“Conventions, Not Legislatures” 109 

is forming upon a quite different system—a govern¬ 
ment without the least dependence upon the people?” 

It may be but a coincidence that, while our Ameri¬ 
can government was announcing its recognition of the 
wide-spread American disrespect for the new govern¬ 
ment edict, it is only a few days since throughout 
America there resounded many eulogies of the Samuel 
Adams, who made that statement in the Boston Ga¬ 
zette of October 7, 1771. In those eulogies, there was 
paid to him the tribute that he largely helped to bring 
about the amazing result of American desire for indi¬ 
vidual freedom which culminated in the assembling of 
the Americans in the “conventions” which ratified the 
proposed Constitution. 

We have already sensed that the existence of the 
supposed Eighteenth Amendment depends entirely 
upon an amazing modern meaning put into the Fifth 
Article made In those conventions. Let us, therefore, 
who are Americans now educated in the experience of 
the Americans who assembled In those “conventions,” 
sit therein with them and there read the story and the 
language of the Fifth Article as they read it when they 
made it. 


CHAPTER IX 


THE FIFTH ARTICLE NAMES ONLY “CONVENTIONS” 

I T has been the misfortune of our prominent Ameri¬ 
cans of this generation that they read the Fifth 
Article with preconceived notions of its meaning. To 
the error of that method of reading It, we average 
Americans will not pay the tribute of Imitation. We 
know that Its meaning to those who made It In the 
“conventions” of the earlier century Is the meaning 
which It must have as part of the supreme law of the 
land. That we may read It as they read It and get Its 
clear and only possible meaning, as they got It, we shall 
briefly review the story of Its wording and Its proposal 
at Philadelphia. That Convention Immediately pre¬ 
ceded the assembling of the people In their own “con¬ 
ventions.” In each of their conventions,^^ among the 
people assembled, were some who had been prominent 
at Philadelphia, such as Madison and Randolph and 
Mason In Virginia, Hamilton In New York, Wilson In 
Pennsylvania and the Pinckneys In South Carolina. 
Moreover, between the Philadelphia proposal and the 
assembling of these conventions, Madison and Ham¬ 
ilton, proposer and seconder of the Fifth Article at 
Philadelphia, had been publishing their famous essays, 
now collectively known as The Federalist, In the New 
York newspapers to explain the Articles worded at 
Philadelphia and to urge their adoption. Under 
which circumstances. It Is clear that. If we want to read 
and know the meaning of the Fifth Article as it was 






Fifth Article Names Only “Conventions” hi 

understood in those conventions, the Fifth Article 
which named those same “conventions,” we must com¬ 
plete our education by an accurate and brief review of 
the story of that Article at Philadelphia. Only in that 
way shall we average Americans of today be in the 
position in which were the Americans who made that 
Article. 

When we read that story of Philadelphia, in relation 
to the Fifth Article, one thing stands out with amazing 
clarity and importance. We already know how that 
Convention, until its last days, was concentrated upon 
the hotly debated question of its own proposed grants 
of national powers in the First Article. In the light 
of which continued concentration, it is not surprising 
to learn that, until almost the very last days, the dele¬ 
gates forgot entirely to mention, in their tentative Fifth 
Article, the existing and limited ability of state legis¬ 
latures to make federal or declaratory Articles, and 
mentioned only “conventions” of the people, who alone 
could or can make national Articles. 

The first suggestion of what we now know as the 
Fifth Article was on the second day. May 29, when 
the Randolph Resolution 13 read “that provision 
ought to be made for the amendment of the Articles 
of union whensoever it shall seem necessary.” This 
wording was the exact language of Resolution 17 of 
the report of the Committee of the Whole. It was 
adopted by the Convention on July 23. Three days 
later, with the other Resolutions, it was referred to 
the Committee of Detail “to prepare and report the 
Constitution.” On August 6, this Committee, in the 
first draft of our Constitution, reported the following: 
“Art. XIX. On the Application of the legislatures of 
two-thirds of the states in the Union, for an amend- 


I 12 


Citizen or Subject? 


ment of this Constitution, the legislature of the United 
States shall call a convention for that purpose.” 

We see clearly why the delegates, their minds con¬ 
centrated on their own proposed grants of national 
powers, mentioned only the people themselves, the 
“conventions” of the “Seventh” and “Fifth” Articles, 
who alone can make national Articles, and forgot to 
mention legislatures, because the latter never can make 
national Articles. That kind of Article was the only 
thing they were then thinking about. Naturally, it then 
escaped their attention that, if they proposed a wise 
and proper distribution of national power between the 
new American government and the respective existing 
state governments, almost every future Article, if not 
every one, would be of the federal kind, which legis¬ 
latures or governments could validly make, as they 
had made all the Articles of the existing federa¬ 
tion. Clearly for that reason this Article XIX never 
even mentioned the existing and limited ability of 
legislatures. 

Between this report of August 6 and August 30, the 
Convention was again entirely occupied with the grants 
of national power and the election of the legislators to 
exercise it or, in other words, with what is now the 
First Article. On August 30, Article XIX was adopted 
without any debate. 

We are now aware that the Convention was within 
two weeks of its end and no one had mentioned, in 
what is now the Fifth Article, the state governments 
or legislatures as possible makers of federal Articles, 
if and when such Articles were to be made in the 
future. 

It was not until September 10, Monday of the last 
Convention week, that Article XIX again came up for 


Fifth Article Names Only “Conventions” 113 

action, when Gerry of Massachusetts moved to recon¬ 
sider it. His purpose, as he himself stated it, was to 
object because it made it possible that, if the people in 
two-thirds of the states called a convention, a majority 
of the American people assembled in that convention 
“can bind the Union with innovations that may subor¬ 
dinate the state constitutions altogether.” Hamilton 
stated that he could see “no greater evil, in subjecting 
the people in America to the major voice than the 
people of any particular state.” He went on to say that 
he did think the Article should be changed so as to 
provide a more desirable “mode for introducing 
amendments,” namely, drafting and proposing them to 
those who could make them. In this respect he said: 
“The mode proposed was not adequate. The state 
legislatures will not apply for alterations, but with a 
view to increase their own powers. The national leg¬ 
islature will be the first to perceive, and will be most 
sensible to, the necessity of amendments; and ought 
also to be empowered, whenever two-thirds of each 
branch should concur, to call a convention. There 
could be no danger in giving this power, as the people 
would finally decide in the case.” (5 Ell. Deh. 531-) 
Roger Sherman of Connecticut then tried to have 
the Article provide that the national government might 
also propose amendments to the several states, as such; 
such amendment to be binding if consented to by the 
several states, namely, all the states. For reasons that 
will appear in a moment, this clear attempt to enable 
the states, mere political entities, and their legislatures, 
always governments, to do what they might wish with 
the individual freedom of the American citizen—thus 
making him their subject—was never voted upon. It 
was, however, seconded by Gerry of Massachusetts. 


Citizen or Subject? 


114 

Its probable appeal to Sherman, always a strong op¬ 
ponent of the national government of individuals in¬ 
stead of the federal government of states, was that it 
would make it difficult to take away any power from 
Connecticut, unless Connecticut wished to give it up. 
Its appeal to Gerry, consistently a Tory in his mental 
attitude to the relation of government and human be¬ 
ing, was undoubtedly the fact that it would permit 
government or governments to do what they might 
wish with individual freedom. It does not escape the 
attention of the average American that our govern¬ 
ments and leaders, during the last five years, have not 
only displayed the mental attitude of Gerry but have 
also acted as if the proposal, which he urged, had been 
put into what is our Fifth Article. Only on that theory 
can we average Americans, with our education, under¬ 
stand why governments in America have undertaken 
to exercise and to vest in our government a national 
power over us, which power neither is enumerated in 
the First Article nor was ever granted by the citizens of 
America to their only government; nor can we under¬ 
stand why our leaders have assumed that governments 
in America, which are not even the government of the 
American citizens, can do either or both of these 
things. We know, if governments and leaders do not, 
that neither thing can ever be possible in a land where 
men are “citizens” and not “subjects.” 


CHAPTER X 


Ability of legislatures remembered 

L iving through the days of that Convention, we 
have now seen three months and ten days of its 
sincere and able effort to word a Constitution which 
would **secure the Blessings of Liberty” to the indi¬ 
vidual American. We have seen them spend most of 
their time in the patriotic endeavor to adjust and settle 
how much, If any, national power to Interfere with 
Individual freedom that Constitution shall give to its 
only donee, the new and general government. In 
other words, we have seen the mind and thought and 
will of that Convention almost entirely concentrated, 
for those three months and ten days, upon the Article 
which is the constitution of government, the First Ar¬ 
ticle, with its enumerated grants of general power to 
Interfere with the human rights of the American 
citizen. 

Keeping in mind the object of that intense concen¬ 
tration, the First Article grants of power of that kind, 
we average Americans note, with determined intent 
never to forget, the effect of that concentration upon 
the wording of our Fifth Article up to that tenth day 
of September. We note, with determined intent never 
to forget, that, from May 30 to September 10, the only 
maker of future changes mentioned was the “people” 
of America, the most Important reservee of the Tenth 
Amendment, the “conventions” of the American people 
named In both the Seventh and the Fifth Articles. 

115 


Citizen or Subject? 


116 

As this fact and its tr'emendous meaning have never 
been known or mentioned in the sorry tale of the five 
years from 1917 to 1922, we average Americans are 
determined to dwell upon it briefly so that we cannot 
escape an accurate appreciation of the short remaining 
story of the one week at Philadelphia, in 1787, in re¬ 
lation to our Fifth Article. 

Only a week earlier, because the First Article did 
grant enumerated powers to interfere with individual 
rights, the Convention had known that the seven ar¬ 
ticles must go to the people directly to say their “Yes” 
or “No” to those grants of the First Article. For that 
reason the Convention (considering limited legislative 
ability to make federal Articles and omnipotent ability 
of the “people” to make all Articles) had decided that 
it MUST propose the mode of ratification by the 
“people,” the “conventions” of the Seventh and the 
Fifth Articles. As Marshall later authoritatively 
stated in the Supreme Court, the legal, necessity of de¬ 
riving national powers from the people themselves, 
the “conventions,” was then known and acknowledged 
by all. 

It was natural, therefore, up to that September 10, 
that a convention, concentrated entirely upon grants of 
that kind, when wording its Article with a mode of 
procedure for making future changes, should have for¬ 
gotten any changes except of the kind on which its own 
mind was concentrated and should have mentioned in 
its amending Article, up to September 10, no maker of 
future changes except the people themselves, “conven¬ 
tions” of the Seventh and the Fifth Articles. 

And, at this point, we average Americans note, 
again with intent never to forget, that if the one com¬ 
petent maker of such Articles, the “conventions,” had 


Ability of Legislatures Remembered 117 


remained the only maker of Articles mentioned in the 
Fifth Article, even the great “constitutional” lawyers 
of I 920 would never have made the monumental error 
of assuming that the Fifth Article was a grant of 
power (to those who made it and all the original Con¬ 
stitution) to make future Articles. Even they would 
have noticed and applied to their reading of the Fifth 
Article the well known legal fact that grantors never 
can and never do grant to themselves what they al¬ 
ready have or a part of it. 

Therefore, noting and remembering these significant 
facts, we turn with interest to the short story of how 
those able Americans at Philadelphia, their minds no 
longer exclusively concentrated on fheir own enum¬ 
erated grants, remembered that there was another 
maker of Articles with existing but limited ability to 
make federal or declaratory Articles. And, with in¬ 
terest, we shall learn how this last week thought caused 
the Convention to change the Fifth Article by adding 
a mention of that existing limited ability and prescrib¬ 
ing the mode of its future constitutional exercise. 

That we average Americans may never be misled by 
inaccurate statements of the short story of how the 
mention of that limited ability was added to the men¬ 
tion of the unlimited ability of the “people” or 
“conventions” of the Fifth Article, it is fitting that the 
full record of the story be given verbatim. It adds not 
a little to our amusement that the story is copied from 
the brief of the leading “constitutional” lawyer of 
1920 who championed the validity of the Eighteenth 
Amendment on the remarkable assumption and error, 
common to all his associates and his opponents, that 
the new mention changed the Fifth Article into a grant 
of ability to those legislatures instead of what its 


ii8 


Citizen or Subject? 


author, Madison, knew and stated that Article to be, 
a “mode of procedure” for the future constitutional 
exercise either of that existing limited ability or the 
other existing unlimited ability of the “people” or 
“conventions” of the Seventh and Fifth Articles. This 
Is the record of that September lo, as copied from that 
brief, beginning Immediately after Hamilton had 
voiced his opinion that there could be no danger in 
letting Congress propose an Amendment “as the 
people would finally decide in the case.” 

“Mr. Madison remarked on the vagueness of the 
terms, ‘call a Convention for the purpose’ as sufficient 
reason for reconsidering the Article. How was a Con¬ 
vention to be formed? by what rule decide? what the 
force of Its acts? 

“On the motion of Mr. Gerry to reconsider 

“N. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. 
Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. 
(Ayes—9; noes—i; divided—i.) 

“Mr. Sherman moved to add to the article ‘or the 
Legislature may propose amendments to the several 
States for their approbation, but no amendments shall 
be binding until consented to by the several States.’ 

“Mr. Gerry 2ded. the motion. 

“Mr. Wilson moved to Insert ‘two thirds of’ before 
the words ‘several States’—on which amendment to 
the motion of Mr. Sherman 

“N. H. ay. Mas. (no). Ct. no. N. J. (no). Pa. ay. 
Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. 
no. (Ayes—5 ; noes—6). 

“Mr. Wilson then moved to Insert ‘three fourths of’ 
before ‘the several Sts.’ which was agreed to nem: con: 

“Mr. Madison moved to postpone the consideration 


Ability of Legislatures Remembered 119 

of the amended proposition in order to take up the 
following, 

“ ‘The Legislature of the U. S. whenever two thirds 
of both Houses shall deem necessary, or on the appli¬ 
cation of two thirds of the Legislatures of the several 
States, shall propose amendments to this Constitution, 
which shall be valid to all intents and purposes as parts 
thereof, when the same shall have been ratified by 
three fourths at least of the Legislatures of the several 
States, or by Conventions In three fourths thereof, as 
one or the other mode of ratification may be proposed 
by the Legislature of the U. S.’ 

“Mr. Hamilton 2ded. the motion. 

“Mr. Rutlldge said he never could agree to give a 
power by which the articles relating to slaves might be 
altered by the States not Interested In that property 
and prejudiced against it. In order to obviate this ob¬ 
jection, these words were added to the proposition: 
‘provided that no amendments which may be made 
prior to the year 1808, shall In any manner affect the 
4 & 5 sections of the VII article.’ The postponement 
being agreed to, 

“On the question On the proposition of Mr. Madi¬ 
son & Mr. Hamilton as amended 

“N. H. dlvd. Mas. ay. Ct. ay. N. J. ay. Pa. ay. 
Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. 
Geo. ay. (Ayes—9; noes—i; divided—i.)” 

II Farrand, 558, 559. 

No American citizen, now living or In the genera¬ 
tions to come, if he values at all the human liberty 
which the entire Constitution was established to secure, 
can spend too much time In reading and understanding 
that short record. It Is the record left by Madison 


120 


Citizen or Subject? 


himself, even though it be copied from the brief of the 
leading “constitutional” lawyer of 1920 who main¬ 
tained his whole argument for the Eighteenth Amend¬ 
ment on the ground that we have been “subjects” of an 
omnipotent government, his clients, since the day, June 
21, 1788, when that Fifth Article was enacted by the 
American people to secure “the Blessings of Liberty 
for themselves and their posterity.” 

As we shall later find herein, it is the claim of all 
who believe the new Amendment to be in our Consti¬ 
tution, although they have hitherto not understood 
their own claim, that the words of the Article, which 
appear in that short record, are the words which 
changed the American individuals, free men from July 
4,1776, into subjects of an omnipotent government, 
composed of the legislative governments of a frac¬ 
tional part of the states. Moreover, as we shall also 
later learn herein, this absurd and amazing claim is 
based wholly on the monumental error of assuming, 
without the faintest suggestion or proffer of support 
for such an assumption, that the new wording of the 
Fifth Article, as proposed by Madison on September 
10, changed the amending Article into a grant of 
ability to make every kind of Article. The monu¬ 
mental error fails to see that Madison merely added to 
the previous mention of the unlimited ability of the 
people or “conventions” a similar mention of the ex¬ 
isting limited ability of the state legislative govern- 
ments to make federal Articles or Articles which 
neither exercise nor grant power to interfere with 
human freedom. Moreover, as we shall also learn 
later herein, the extraordinary and unfounded as¬ 
sumption (that the amending Article was changed on 
September 10 into a ^rant of ability to make Articles 


Ability of Legislatures Remembered 121 


instead of a recognition and mention of two existing 
different abilities, one of which had always been men¬ 
tioned therein) has been hitherto concurred in by every 
one who has challenged the validity of the Eighteenth 
Amendment. They have only differed from the sup¬ 
porters of the new Amendment in contending that the 
impossible grant, absurdly imagined to have been made 
by the grantors to themselves as well as to state legis¬ 
latures, was a grant of limited ability but did not in¬ 
clude the ability to make an amendment such as the 
Eighteenth. 

When we do come later herein to the briefs and 
arguments of the opponents and supporters of the sup¬ 
posed Eighteenth Amendment, we shall look in vain to 
find therein the faintest suggestion of a claim that there 
is anything in the record of September 10, 1787, to jus¬ 
tify their extraordinary and unfounded assumption 
that the Fifth Article, on that day, was changed so as 
to make it a grant of power from the “conventions” 
of the people to the “conventions” of the whole Ameri¬ 
can people and to the state legislatures. On the 
contrary, we shall find every opponent of the supposed 
new Amendment making easy the way of its supporters 
by joining in the common assumption of all and predi¬ 
cating every argument against the new Amendment on 
the same extraordinary assumption that the Fifth Ar¬ 
ticle is a grant of power to the grantors and to the 
state governments. Not once, in any brief or argu¬ 
ment of the most renowned lawyers in America, shall 
we find even the faintest knowledge of two facts which 
must be so if the Fifth Article is a grant of power to 
the two supposed grantees. That each of the two facts 
is a patent absurdity will not alter the logic that they 
must be facts, if the Fifth Article is a grant to those 


122 


Citizen or Subject? 


two grantees. The first patently absurd fact is that, if 
the Fifth Article is a grant, the “conventions” of 1788 
granted to themselves, the supposed grantors, exactly 
the same omnipotent power to make all Articles, which 
the grantors (a supposed grantee) were exercising at 
the very moment when they made the Fifth Article. 
The second patently absurd fact, if the Fifth Article 
is a grant, is that the whole people of America, as¬ 
sembled in their “conventions,” after eleven years as 
free men, voluntarily relinquished that status to be¬ 
come, as the whole people of America, “subjects” of 
the same legislative governments who are one of 
the supposed donees of the absurd and imaginary 
grant. This remarkable fact follows as the logical 
conclusion of the concept that the “conventions” 
granted to the “conventions” and to the state govern¬ 
ments, with Congress to determine which shall exercise 
it, the very omnipotent power which the people them¬ 
selves (the supposed grantors) were then exercising in 
their “conventions” and which eleven years before they 
had denied to the British Parliament. When we later 
realize that none of our modern leaders saw either 
absurd fact to be the certain result of the concept that 
the Fifth Article is a grant, we average Americans 
ought certainly to be convinced that, if we wish to keep 
our individual rights in any matter, it is going to be 
necessary for us to understand for ourselves how our 
Constitution secures those rights to us. 

Forewarned of such necessity, we return with re¬ 
newed interest to the examination of the record of the 
day on which it is assumed that Madison suggested 
that the Fifth Article should be changed into a “grant” 
and then proposed to the American people, so that they 
might voluntarily relinquish their status as free men 


Ability of Legislatures Remembered 123 

and become “subjects” of a government with omnipo¬ 
tent ability to legislate in restraint of their individual 
freedom “in all matters whatsoever.” It ought not to 
detract from our amusement that this remarkable 
proposal of such a “grant” (as our modern leaders 
see it) was to go to the American people in each state 
and there be approved by that people with the knowl¬ 
edge that the people in that particular state, on the 
occasion of a future proposal, might not elect a single 
member of the legislative governments who would 
exercise that omnipotent power over their every indi¬ 
vidual right. 

Our amusement is not lessened when we find that 
the supposed “grant” was suggested by Madison and 
seconded by Hamilton. The Philadelphia Convention 
was being held in the America which had just emerged 
from an eight year Revolution to establish the doctrine 
that no government could be omnipotent in its ability 
to interfere with individual freedom. The Convention 
itself had devoted three months and ten days, before 
the day in question, to bitter dispute about giving even 
enumerated powers of that kind to the American gov¬ 
ernment mentioned in the First Article. It is there¬ 
fore, with great amusement but with serious intent 
never to forget, that we note that not a single voice 
was raised in the Convention either to uphold or to 
protest this supposed and absurd “grant” of omnipo¬ 
tence to an entirely different government. On the 
contrary, as we note with intent never to forget, the 
newly worded Article was treated by the Convention 
as if every important matter in it had been settled be¬ 
fore the state governments were even mentioned in it 
as makers of the kind of Articles which they already 
had the power to make, federal Articles. As soon as 


124 


Citizen or Subject? 


the newly worded Article had been suggested by 
Madison and Plamilton, the Article which Madison 
himself describes as a constitutional mode for the 
exercise of existing abilities to make Articles, only one 
change (utterly unimportant now) was suggested in 
the new wording. This was the suggestion that the 
Article should not provide a constitutional mode in 
which existing ability to interfere with slavery could 
be constitutionally exercised prior to the year 1808. 
This change was immediately made by the Convention. 
Then, without the slightest objection to any other part 
of the supposed absurd “grant,” the Convention ap¬ 
proved the newly worded Article. 

From the absence of one word of protest we quite 
clearly realize that no man in that Convention so mis¬ 
construed the simple statement of Madison’s Fifth 
Article as to read into it an imaginary “grant” of any 
ability whatever to the state legislative governments. 
We realize that these men, who were accurate thinkers, 
knew that the “conventions” named in this Madison 
Article were exactly the same “conventions” which 
Philadelphia had already named in what we Icnow now 
as the Seventh Article. We realize that they knew 
at once, when Madison proposed his Article, that the 
“conventions” named in it, like the same “conven¬ 
tions” named in the Seventh, were “We, the people” 
of America, named in the Preamble. And, from a 
moment’s reflection, we are aware that the delegates 
at Philadelphia immediately knew that Madison was 
not making the absurd suggestion that the American 
people, the “conventions” of the Seventh and Mad¬ 
ison’s new Article, should grant, In the very “conven¬ 
tions” of the Seventh, to themselves, anything what¬ 
ever of power, either all or part of the power which 


Ability of Legislatures Remembered 125 

they would be then exercising in those “conventions.” 
From which It follows, as the night the day, that the 
delegates also knew that If Madison’s Article was not 
a grant by the “conventions” to the “conventions,” It 
was not a grant to the “legislatures.” For which reason 
we will not dwell at all upon the obvious fact that 
there Is not the slightest suggestion of a word of grant 
In the Fifth Article. 

Before emphasizing the absurdity of the thought 
that the Americans at Philadelphia ever Intended the 
plain statement of the Fifth Article to be a “grant” of 
power of any kind, It seems proper that we should 
grasp at once what It clearly was understood by them 
to be. Their understanding and knowledge of Its 
meaning become very clear to us, when we read It, as 
they heard It from Madison, fresh from their great 
debate as to the grant of enumerated powers In their 
First Article and their proposal of a ratification by 
“conventions” as the only valid mode of ratification 
for an Article which grants power to Interfere with 
human freedom. We recall now that, when Madison 
suggested his Fifth Article to them, on September 10, 
the echoes were still ringing of the sound statements 
of Madison and others that Philadelphia must pro¬ 
pose a mode of ratification by the people or “conven¬ 
tions” because legislatures never could be competent. 
In America, to make Articles which did constitute gov¬ 
ernment by granting power to Interfere with human 
freedom. When we read Madison’s Fifth Article, 
with the same statements still fresh In our minds, we 
realize at once how the delegates at Philadelphia rec¬ 
ognized, In the Madison Article, the meaning of every 
reference to the duties Imposed upon, not the powers 
granted therein, to Congress. The delegates had met 


126 


Citizen or Subject? 


at Philadelphia with purpose and intent to draft and 
propose constitutional Articles in their judgment best 
designed to secure human liberty to Americans, and 
then, after they had drafted their Articles and knew 
the nature of such Articles, whether national or fed¬ 
eral, to propose a mode of ratification in which their 
proposed Articles would be made by those competent 
to make them. 

When September lo had come they had finished 
their work of drafting their Article, which constituted 
government, the First Article. For the purpose of 
reaching their decision as to the valid mode of ratifi¬ 
cation for an Article of that kind, they had considered 
and discussed the existing unlimited ability of the “peo¬ 
ple” or “conventions” to make all Articles, and the 
existing limited ability of the state legislatures to make 
some. The unerring decision which they had made 
was that their Articles would not be validly made, 
because the First Article constituted national govern¬ 
ment of men, unless they proposed a mode of ratifica¬ 
tion by the “conventions” of the American people. 

We note, with intent to remember, that they were 
well aware that drafting and proposing an Article did 
not make it valid or part of a Constitution and that 
proposing a mode of ratification did not make it a 
valid mode, unless the ratifiers were competent to make 
the proposed Article. We recall that Wilson, who 
appears in the brief record of September lo, later 
made clear the knowledge of those at Philadelphia 
that their proposal of Articles and their proposal of a 
mode of ratification could not make either valid, that 
the making of a proposal is not the exercise of any 
power. 

In the Pennsylvania convention he said: “I come 


Ability of Legislatures Remembered 127 

now to consider the last set of objections that are 
offered against this Constitution. It Is urged that this 
Is not such a system as was within the powers of the 
Convention; they assumed the power of proposing, 
. . . I never heard, before, that to make a pro¬ 
posal was an exercise of power. . . . The fact 
is, they have exercised no power at all; and. In point 
of validity, this Constitution, proposed by them for 
the government of the United States, claims no more 
than a production of the same nature would claim, 
flowing from a private pen.” (2 Ell. Deh. 469-470.) 

Now, if Wilson and the other delegates at Phila¬ 
delphia, on September 10, knew that to make a pro¬ 
posal was no exercise of power, they clearly under¬ 
stood that Madison’s Fifth Article, when It stated 
that Congress might propose an Amendment and Con¬ 
gress might propose a mode of ratification, was an 
Article which purported to grant no power to Con¬ 
gress. If we recall the truth, which Madison so often 
expressed, that It Is the privilege of any citizen or 
body of citizens to propose that existing power be 
exercised, we realize that, if the Fifth Article had not 
mentioned Congress as the maker of either proposal. 
Congress would still have had full ability to make 
either or both proposals at any time. As the dele¬ 
gates at Philadelphia knew this as well as we now 
know It, as we have been helped to our appreciation 
of It by them and their statements. It is apparent how 
Instantly they knew that the mention of Congress, as 
the proposer of an Amendment and as the proposer 
of Its mode of ratification, meant that Congress alone 
was to be left with— not given —the duty which they 
had assumed themselves to perform at Philadelphia. 
That duty, as they knew and we now know, was to 


128 


Citizen or Subject? 


draft a proposed Article and, after it had been worded, 
to examine it and its nature and (with the validity 
of their ultimate proposal absolutely determined by 
that nature) then to propose the Article and a mode 
of ratification for it which would mean ratification by 
those competent to ratify an Article of its particular 
kind. In other words, they knew that, whenever Con¬ 
gress performed the duty they had just performed 
themselves, after an Article had been drafted, it would 
be legally necessary for Congress, as it had been for 
them at Philadelphia, to consider the existing and dif¬ 
ferent abilities of the “people” or “conventions” and 
the state legislatures to make Articles, and from that 
consideration to ascertain a competent ratifier for the 
particular Article they had drafted and, the validity 
of the ratification to depend entirely on the accuracy 
of their ascertainment and not on their own proposal 
of ratification, to propose a mode of ratification in 
which that Article would be made by those competent 
to make it. With the meaning and effect of a “pro¬ 
posal” so clearly known to them all, with their own 
immediate recent experience in the performance of 
the very duty which Madison’s Fifth Article left the 
duty of Congress in the future, it was a simple matter 
for these delegates at Philadelphia to know exactly 
what was the only possible meaning of Madison’s 
words, when the same “shall have been ratified by 
three fourths at least of the legislatures of the several 
states, or by conventions in three fourths thereof, as 
one or the other mode of ratification may be proposed 
by the legislature of the U. S.” 

How accurately Madison himself knew all this, how 
accurately he knew that the Philadelphia proposal 
would validate neither proposed Articles nor proposed 


Ability of Legislatures Remembered 129 

mode of ratification, and that Congress proposal in 
the future would never validate either proposed Arti¬ 
cle or proposed mode of ratification, he has not left 
to speculation. 

It was the charge of the opponents of the proposed 
Constitution that the Philadelphia Convention had 
exceeded its powers in proposing those Articles. Mad¬ 
ison defended himself and his Philadelphia associates 
in The Federalist, Number 40, published in the New 
York Packet on Friday, January 18, 1788. With his 
logical mind, he echoed the knowledge of Wilson and 
his other colleagues, who had drafted and proposed 
the Articles and proposed their ratification by the “peo¬ 
ple” or “conventions” of the Seventh and the Fifth 
Articles. It was his knowledge, as it was their knowl¬ 
edge, that the Philadelphia proposals were, as the 
future Congress proposals would be, no exercise of 
power and that the validity of any Article, proposed at 
Philadelphia or proposed by Congress, must always 
depend, not raerely upon its being ratified in the mode 
proposed respectively by Philadelphia or by Congress, 
but also—and immeasurably the most important test 
of valid ratification—upon its being ratified by rati- 
fiers competent to make the particular Article. 

It was his knowledge, as it was their knowledge, as 
it is now our knowledge, that if a proposed Article 
directly interfere with or grant power to interfere with 
human freedom, as the First Article, or the Eighteenth 
Amendment, it can never be validly made by govern¬ 
ment but only by the “people” of the Tenth Amend¬ 
ment; the “conventions” of the “Seventh” and “Fifth” 
Articles. 

Among other things, in his defense of himself and 
his Philadelphia associates, this is what Madison said 


130 


Citizen or Subject? 


of them: “They must have reflected, that In all great 
changes of established governments, forms ought to 
give way to substance; that a rigid adherence In such 
cases to the former would render nominal and nuga¬ 
tory the transcendent and precious right of the people 
to ‘abolish or alter their governments as to them shall 
seem most likely to effect their safety and happiness,’ 
since it Is Impossible for the people spontaneously and 
universally to move In concert towards their object; 
and It Is therefore essential that such changes be insti¬ 
tuted by some informal and unauthorized propositions 
made by some patriotic and respectable citizen or num¬ 
ber of citizens. They must have recollected that it 
was by this Irregular and assumed privilege of pro¬ 
posing to the people plans for their safety and happi¬ 
ness that the states were first united against the danger 
with which they were threatened by their ancient ‘gov¬ 
ernment; that committees and congresses were formed 
for concentrating their efforts and defending their 
rights; and that conventions were elected In the several 
states for establishing the constitutions under which 
they are now governed; . . . They must have 

borne In mind that as the plan to be framed and pro¬ 
posed was to be submitted to the people themselves^ 
the disapprobation of the supreme authority would 
destroy it forever; Its approbation blot out antecedent 
errors and Irregularities.” 

And so we come from that September lo, 1787, with 
the accurate knowledge that Madison then proposed 
and Hamilton seconded and all the delegates adopted 
the first amending Article which ever mentioned the 
state governments as makers of any future Amend¬ 
ments. And we know that they did so with the un¬ 
mistakable Intent and understanding that It changed 


Ability of Legislatures Remembered 13 i 

not at all the existing inability of any governments in 
America to create, for themselves or for other gov¬ 
ernments, any national power to interfere with the 
citizens of America in the exercise of their human 
freedom. And we also come from that record with 
the certain knowledge that the Madison Fifth Article 
of September 10 merely provided that, when future 
Articles were suggested, the Congress should play the 
part which the Philadelphia Convention was playing, 
which part involved no exercise of power of any kind, 
and that such part of Congress should consist in merely 
proposing an Article and proposing its mode of ratifi¬ 
cation. And we also come from that day with the 
equally certain knowledge, which we do not intend to 
forget, that Madison himself knew clearly that the 
valid ratification of future Articles would depend, as 
he knew the valid ratification of the Philadelphia Arti¬ 
cles did depend, not on the fact that ratification was in 
the mode proposed but on the fact that the proposer 
of a mode of ratification should propose a mode in 
which the proposed Article could be made by those 
competent to make an Article of its particular kind. 

For these reasons, if the supporters of the Eigh¬ 
teenth Amendment expect us, now educated with those 
earlier Americans up to and including the record of 
September 10, 1787, to believe that the Madison Fifth 
Article, first worded on that day, purported to grant 
or was understood and intended by Madison and his 
colleagues to grant any power to the state legislative 
governments in America over ourselves, the citizens 
of America, we shall hereafter listen, with naught but 
amusement, to these amateur “constitutional” thinkers 
and their effort to change legal fact into fiction by 
assumption. Confirmed by our education with Mad- 


132 


Citizen or Subject? 


Ison and the others who had all to do with the wording 
and the making of that Fifth Article of September lo, 
1787, we recognize, even if these “constitutional” 
thinkers do not recognize, that we ourselves are the 
“conventions” of the Fifth Article in which sit the 
American people to exercise their exclusive ability to 
grant to government any power to interfere with their 
individual freedom. We have now, even if these “con¬ 
stitutional” thinkers never have had, the knowledge 
of the legal necessity that power of that kind must be 
derived from ourselves, the “people” of the Tenth 
Amendment and the “conventions” of the Seventh and 
the Fifth Articles—the necessity in 1787 “felt and 
acknowledged by all.” We know, as Marshall knew 
in one of those “conventions” of 1788 and as he knew 
and stated on the Bench of the Supreme Court, that 
there is but one way in which we, the citizens of 
America, can act safely or effectively or wisely on the 
subject of new interference with our individual free¬ 
dom, by assembling in our “conventions,” the “con¬ 
ventions” of the Fifth as well as the Seventh Article. 

And so, with our knowledge and certainty that the 
Madison Fifth Article of September 10 never could 
change the status of the free American into that of 
the subject of an omnipotent government, we come to 
the last business day of the Philadelphia Convention, 
September 15, the only other day on which the Mad¬ 
ison Fifth Article, with its mention of legislative abil¬ 
ity to make federal Articles but not national Articles, 
was ever considered at Philadelphia. 

On that day the Committee of Style reported the 
seven Articles which we now know as our Constitution. 
The Madison amending Article, except that “the legis¬ 
lature of the U. S.” was called “the Congress,” was 


/ 


Ability of Legislatures Remembered 133 

identical with that of September 10. As it is important 
that we Americans shall never be told anything about 
the record of September 10 or September 15, in rela¬ 
tion to this Madison Fifth Article, which is not some¬ 
thing that is in the record, that we may be given no 
distorted version of what happened in that Conven¬ 
tion about the only Article which ever mentioned state 
“legislatures” as makers of some future Articles, we 
shall have again the pleasure of reading the entire 
record of September 15. Again we read it from the 
brief of the great “constitutional” lawyer of 1920 who 
argued on the assumption that this Article, worded by 
Madison, was intended to make us and did make us, 
the citizens of America, the subjects of an omnipotent 
government, composed mostly of the client govern¬ 
ments whom he represented in the Court Room of 
1920. This is his record of the full story of September 
15 in relation to the Fifth Article of Madison, from 
which record this “constitutional” lawyer and his asso¬ 
ciates hope to derive—how we know not—some sup¬ 
port for this belief and this argument. 

“Mr. Sherman expressed his fears that three fourths 
of the States might be brought to do things fatal to 
particular States, as abolishing them altogether or 
depriving them of their equality in the Senate. He 
thought it reasonable that the proviso in favor of the 
States importing slaves should be extended so as to 
provide that no State should be affected in its internal 
police, or deprived of its equality in the Senate. ' 

“Col. Mason thought the plan of amending the 
Constitution exceptionable and dangerous. As the 
proposing of amendments is in both the modes to 
depend, in the first immediately, and in the second, 
ultimately, on Congress, no amendments of the proper 





134 


Citizen or Subject? 


kind would ever be obtained by the people, if the gov¬ 
ernment should become oppressive, as he verily be¬ 
lieved would be the case. 

“Mr. Govr. Morris & Mr. Gerry moved to amend 
the article so as to require a Convention on applica¬ 
tion of two thirds of the Sts. 

“Mr. Madison did not see why Congress would 
not be as much bound to propose amendments applied 
for by two thirds of the States as to call a Convention 
on the like application. He saw no objection however 
against providing for a Convention for the purpose 
of amendments, except only that difficulties might arise 
as to the form, the quorum etc. which In Constitutional 
regulations ought to be as much as possible avoided. 

“The motion of Mr. Govr. Morris and Mr. Gerry 
was agreed to nem: con (see: the first part of the 
article as finally past) 

“Mr. Sherman moved to strike out of art. V. after 
‘legislatures’ the words ‘of three fourths’ and so after 
the word ‘Conventions’ leaving future Conventions to 
act In this matter, like the present Conventions accord¬ 
ing to circumstances. 

“On this motion 

“N.H.dlvd. Mas.ay. Ct.ay. N.J.ay. Pa.no. Del.no. 
Md.no. Va.no. N.C.no. S.C.no. Geo.no. (Ayes—3; 
noes—7; divided—i.) 

“Mr. Gerry moved to strike out the words ‘or by 
Conventions In three fourths thereof’ 

“On this motion 

“N.H.no. Mas.no. Ct.ay. N.J.no. Pa.no. Del.no. 
Md.no. Va.no. N.C.no. S.C.no. Geo.no. (Ayes—i; 
noes—10.) 

“Mr Sherman moved according to his Idea above 
expressed to annex to the end of the article a further 


Ability of Legislatures Remembered 135 

proviso ‘that no State shall without its consent be 
affected in its internal police, or deprived of its equal 
suffrage in the Senate’ 

“Mr. Madison Begin with these special provisos, 
and every State will insist on them, for their bound¬ 
aries, exports, etc. 

“On the motion of Mr. Sherman 

“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. 
Del. ay. Md. no. Va. no. N.C. no. S.C. no. Geo. 
no. (Ayes—3 ; noes—8.) 

“Mr. Sherman then moved to strike out art. V. alto¬ 
gether 

“Mr. Brearley 2ded the motion, on which 

“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. 
Del. divd. Md. no. Va. no. N.C. no. S.C. no. 
Geo. no. (Ayes—2; noes—8; divided—i.) 

“Mr. Govr. Morris mov^ed to annex a further pro¬ 
viso—‘that no State, without its consent shall be de¬ 
prived of its equal suffrage in the Senate’ 

“This motion being dictated by the circulating mur¬ 
murs of the small States was agreed to without de¬ 
bate, no one opposing it, or on the question, saying no.” 

II Farr and 629-631. 

At once we notice with interest that these men, re¬ 
nowned as the marvelous leaders of a people better 
acquainted with the science of government than any 
other people in the world, men who have spent three 
entire months and fifteen days in their wonderful effort 
to frame a constitution which will secure “the Bless¬ 
ings of Liberty” to all American individuals and their 
posterity, still have no knowledge whatever, the weird 
and marvelous knowledge of 1917 and 1920, that this 
Madison Fifth Article gives to the state governments 


Citizen or Subject? 


136 

the very omnipotence which the American people, by 
a successful Revolution, had just wrested from the 
British Parliament. We note with interest Mason’s 
objection to the Madison “mode of procedure” in 
which may thereafter be exercised the limited ability 
of these very state governments to make federal Arti¬ 
cles and the unlimited ability of the people or conven¬ 
tions to make national Articles. Mason’s objection, 
having direct reference to the grant of national powers 
In the First Article and his fear (the continued and 
expressed fear for the next two years In the “conven¬ 
tions” of the Seventh and the Fifth Articles) that the 
people may find these enumerated powers oppressive, 
is that. If the people do find them oppressive. Congress, 
which has these powers, will never propose an Amend¬ 
ment to take any of these powers away from Congress. 
For which reason Morris and Gerry moved to amend 
the Article so that, if Congress does not propose an 
Amendment for which there seems to be a demand, 
the legislatures of two thirds of the states may insist 
that Congress call a convention and that such conven¬ 
tion may propose an Amendment. This suggestion 
was carried. 

We next find Sherman moving to strike out the 
words “three fourths” after the word “legislatures” 
and after the word “conventions.” This motion was 
defeated. We next find, and we fix firmly in our mind 
with intent never to forget^ that Gerry moved to strike 
out of Madison’s Article all reference to the “people” 
of the Preamble and the Tenth Amendment, the “con¬ 
ventions” of the Seventh and the Fifth Article, as the 
makers of any future Articles or changes In the Con¬ 
stitution. His motion was “to strike out the words 
^or hy conventions in three fourths thereof* ** 

/ 


Ability of Legislatures Remembered 137 


As almost every one, during the last five years, in¬ 
cluding the sponsor of the Eighteenth Amendment in 
the House of Representatives, seems to have had an 
edition of our Constitution, in which the Fifth Article 
does not contain these words, and as everyone, during 
the same five years, has argued and acted as if these 
words were not in the Fifth Article or have no mean¬ 
ing whatever of the slightest importance, we intend 
to note and never forget that Gerry’s motion to strike 
these words out was beaten by a vote of ten to one. 

As we know, the “people” of America themselves 
are identified by the word “conventions” in this Fifth 
Article, just as they are identified by the same word 
in the Seventh Article. As we know, we ourselves — 
the posterity of the “people” of the Preamble—are 
identified by this word “conventions” in the Fifth Arti¬ 
cle, just as we are identified in the Tenth Amendment 
as the most important reservee thereof by the word 
“people.” Wherefore our interest in this motion of 
Gerry and its overwhelming defeat is only exceeded 
by our absolute amazement, for the last five years, at 
the universal ignorance of the fact that it was de¬ 
feated and of the fact that we are mentioned in the 
Fifth Article as the only competent makers of any 
new Articles which either directly interfere or grant 
power to interfere with our individual freedom. 

We do not know, and to an extent we do not care, 
what was the purpose of Gerry. Gerry was always 
an opponent of a Constitution which vested national 
power in a general government. He was an advocate 
of the continued complete independence of each state 
and its government and of a mere federal union of 
states with a purely federal constitution. He was also 
always a consistent Tory in his mental attitude as to 


Citizen or Subject? 


138 

the relation of human being to government. If he had 
been successful in striking out any mention of our¬ 
selves, the “people” or “conventions,” leaving only 
the mention of the state legislatures, with their exist¬ 
ing ability to make f ederal Articles, it would have been 
impossible that any further national power (beyond 
the grants of the First Article) be vested in the gen¬ 
eral government or taken from each state govern¬ 
ment, as only we ourselves could make national Arti¬ 
cles like the First. We surmise that a mixture of his 
Tory mental attitude and his opposition to a general 
national government (which minimized the importance 
and diminished the independent sovereignty of each 
state government) prompted his motion. That his 
motion was overwhelmingly defeated is the only im¬ 
portant fact for us American citizens. We shall not 
forget it even if our leaders and our “constitutional” 
thinkers forget it and ignore it. 

We have no further interest in the short record of 
that September 15. No other change was made in 
the Madison Fifth Article except to take out of it any 
constitutional mode of procedure for the exercise of 
the existing ability of ourselves, the “people” or “con¬ 
ventions,” to deprive any state of an equal representa¬ 
tion in the Senate v/ith every other state. We still can 
do that, but we have no constitutional mode of pro¬ 
cedure under the Fifth Article by which we can exer¬ 
cise our ability to do it. This change was not, how¬ 
ever, as so many have absurdly thought, an exception 
to an imaginary power which we ourselves, the “con¬ 
ventions” of the Seventh Article and the “people” of 
the Preamble and the Tenth Amendment, in those 
very “conventions,” “granted” to ourselves, the same 
“people” and “conventions” mentioned in the Fifth 


Ability of Legislatures Remembered 139 

Article. It was a recognition of our existing ability, 
about to be exercised in those “conventions,” the abil¬ 
ity of the supreme will in America to deprive any state 
of its equal representation in the Senate; and it was 
our own exclusion of that ability from any constitu¬ 
tional exercise. The reflecting mind will remember 
that, in the heated arguments at Philadelphia, there 
was strong sentiment in favor of asking us, the people 
of America, the “conventions” of the Seventh Article, 
to exercise our exclusive ability in that very respect 
and make the Senate a body composed of members 
elected from larger proportions of the people than 
the members of the House of Representatives. It was 
the recollection of that effort which prompted the 
request that our exclusive ability to do that very thing 
should not be provided with a constitutional mode of 
future exercise. 

We average Americans may now leave, in our pres¬ 
ent education, the entire story of that wonderful Con¬ 
vention at Philadelphia. We leave it with a knowl¬ 
edge of our Constitution we never had until we had 
lived with those Americans through the actual record 
of those three months and seventeen days from the 
end of May to September 17, 1787. We bring from 
it a knowledge that brooks no contradiction. We are 
certain that nothing in any of the Articles proposed 
at Philadelphia purported to give the state legislatures 
any power of any kind whatever, in the Fifth Article 
or anywhere else, either to interfere with the indi¬ 
vidual freedom of the American citizen or to grant 
the power of such interference to themselves or to our 
only government, the Congress. We bring frorn that 
Convention the knowledge that, unless something in 
the conventions of the American people, the conven- 


140 


Citizen or Subject? 


tions” of the Seventh Article and the Fifth Article, 
changed the free men of America, the citizens of Amer¬ 
ica, into subjects of an omnipotent legislative govern¬ 
ment, we ourselves in 1923 are still the citizens of 
America and possessors of the supreme will in Amer¬ 
ica and are subjects of no government or governments 
in the world. 


CHAPTER XI 


CONVENTIONS CREATE GOVERNMENT OF MEN 

The Constitution is a written instrument. As such its 
meaning does not alter. That which it meant when adop¬ 
ted it means now. Being a grant of powers to a govern¬ 
ment its language is general. . . . While the powers 
granted do not change, they apply from generation to gen¬ 
eration to all things to which they are in their nature ap¬ 
plicable. This in no manner abridges the fact of its change¬ 
less nature and meaning. Those things which are within 
its grant of power, as those grants were understood when 
made, are still within them, and those things not within 
them remain still excluded. (Justice Brewer, in the Su¬ 
preme Court, South Carolina v. United States, 199 U. S, 
437, at p. 448.) 

It is not only the same in words, but the same in mean¬ 
ing, and delegates the same powers to the government, and 
reserves and secures the same rights and privileges to the 
citizen; and as long as it continues to exist in its present 
form, it speaks not only in the same words; but with the 
sapie meaning and intent with which it spoke when it came 
from the hands of its framers, and was voted on and adopted 
by the people of the United States. (Scott v. Sandford, 19 
How. 393, p. 426.) 

F rom which common sense statements of what al¬ 
ways has been both reason and law, we know 
that whatever the Fifth Article meant to those who 
made it, in the conventions named in it as well as in 
the Seventh Article, it means today. There is no 
better way in which we can grasp its meaning to the 
American people assembled in those conventions, than 
by sitting with them and reading it as they read it, 

141 


142 


Citizen or Subject? 


with their fresh knowledge of all the wonderful things 
in which they had participated from the Statute of ’76 
to the proposal from Philadelphia of 1787. As we 
have just lived through all that period with them, we 
are in a wonderful position to read it and understand 
it as they understood it. Moreover, we are in a won¬ 
derful position to listen to the statements of the men 
in those “conventions.” In those statements, whether 
by advocates or opponents of the Constitution, we 
shall find the invincible negation—without one dissent 
—^bf the absurd assumption that Madison’s Fifth 
Article is a *‘grant*^ of any ability to make Articles. 
In those statements, we shall find all discussion of that 
Fifth Article centering upon the one. question, i.e., 
whether it provides a practical mode of procedure in 
which the exclusive ability of the “people” or “con¬ 
ventions” can defend individual rights by withdrawal 
of some part of the power of interference therewith 
granted in the First Article. Mason had pointed out 
at Philadelphia that the procedural provisions of the 
Fifth Article— and it consists entirely of procedural 
provisions for the exercise of existing pozvers—left 
the drafting and proposal of Amendments entirely to 
governments. For which reason, in the “conventions,” 
Henry and all the great opponents of the Constitu¬ 
tion argued that, if the individual Americans found 
the granted national powers of the First Article dan¬ 
gerous to human liberty, the “people” or “conven¬ 
tions” would never get the constitutional opportunity 
to exercise their ability to withdraw. 

“You”—the “you” being the individual Americans 
assembled in one convention—“therefore, by a natural 
and unavoidable implication, give up your rights to 
the general government. . . If' you give up 


Conventions Create Government of Men 143 

these powers,” the enumerated powers of the First 
Article, “without a bill of rights, you will exhibit the 
most absurd thing to mankind that ever the world saw 
—a government that has abandoned all its powers— 
the powers of direct taxation, the sword, and the purse. 
You have disposed of them to Congress, without a bill 
of rights—^without check, limitation, or control. And 
still you have checks and guards; still you keep bar¬ 
riers—pointed where? Pointed against your weak¬ 
ened, prostrated, enervated state government! You 
have a bill of rights to defend you against the state 
government, which is bereaved of all power, and yet 
you have none against Congress, though in full and 
exclusive possession of all power! You arm yourselves 
against the weak and defenseless,” the state legisla¬ 
tures mentioned in the Fifth Article, “and expose 
yourselves naked to the armed and powerful. Is not 
this a conduct of unexampled absurdity?” 

So thundered Henry in the Virginia convention. (3 
Ell. Deb. 446.) 

“To encourage us to adopt it, they tell us that 
there is a plain, easy way of getting amendments. 
When I come to contemplate this part, I suppose that 
I am mad, or that my countrymen are so. The way 
to amendment is, in my conception, shut. Let us con¬ 
sider this plain, easy way.” Then follows the verbatim 
statement of the Madison Fifth Article as proposed 
from Philadelphia. “Hence it appears that three 
fourths of the states must ultimately agree to any 
amendments that may be necessary. Let us consider 
the consequence of this. However uncharitable it 
may appear, yet I must tell my opinion—that the most 
unworthy characters may get into power and prevent 
the introduction of amendments. Let us suppose— 


144 


Citizen or Subject? 


for the case is supposable, possible, and probable— 
that you happen to deal those powers to unworthy 
hands; will they relinquish powers already in their 
possession, or agree to amendments? Two thirds of 
the Congress, or of the state legislatures, are neces¬ 
sary even to propose amendments. . . . To 

suppose that so large a number as three fourths of 
the states will concur is to suppose that they will pos¬ 
sess genius, intelligence, and integrity, approaching to 
miraculous. It would indeed be miraculous that they 
should concur in the same amendments, or even in 
such as would bear some likeness to one another ; for 
four of the smallest states, that do not collectively 
contain one tenth part of the population of the United 
States, may obstruct the most salutary and necessary 
amendments. Nay, in these four states, six tenths of 
the people may reject these amendments. . . . 

So that we may fairly and justly conclude that one 
twentieth part of the American people may prevent 
the removal of the most grievous inconveniences and 
oppression, by refusing to accede to amendments. A 
trifling minority may reject the most salutary amend¬ 
ments. Is this an easy mode of securing the public 
liberty? It is, sir, a most fearful situation, when the 
most contemptible minority can prevent the alteration 
of the most oppressive government; for it may, in 
many respects, prove to be such.” (3 EIL Deb, 48.) 

So thundered Henry against the weakness of the 
Madison procedure in which only by proposal from 
governments could there be constitutionally evoked the 
exclusive ability of the citizens of America to dictate 
how much power to interfere with individual freedom 
should be left for the citizens of each state to use in 
governing themselves, and how much power of that 


Conventions Create Government of Men 145 

kind should be retained by the individual people of 
America themselves. Henry was opposing a Consti¬ 
tution in which the individual people of America were 
dictating that their general government, the Congress, 
should have only the enumerated powers of that kind 
which are in the First Article. In it, they were dic¬ 
tating that each state government, except as the Amer¬ 
ican people forbade it, should have just so much of 
that kind of power as the citizens of that particular 
state should grant that government. And in it, they 
were dictating that the people of America themselves, 
the most important factor and reservee of the Tenth 
Amendment, should retain all other power of that 
kind to be granted only by themselves, the “conven¬ 
tions” of the Madison Fifth Article. Throughout 
all his thunder against that Constitution, Henry, like 
every other opponent of that Constitution, never ques¬ 
tioned that this was the exact distribution of power 
to interfere with individual freedom which was dic¬ 
tated in the Constitution. His only complaint, and 
their only complaint, was that the Madison Fifth Arti¬ 
cle, because its constitutional procedure could only be 
evoked by a proposal from governments, was no pro¬ 
tection to human liberty against the granted power of 
that kind in the First Article. The absurd thought of 
our modern “constitutional” thinkers (contradicting 
the plain statement of the Tenth Amendment and con¬ 
tradicting everything that was said in the “conven¬ 
tions” that made the Fifth Article) is that the Article 
itself is a **granf^ of omnipotent power to governments 
(the legislative governments of the states) to interfere 
with individual freedom. When we contrast the 
knowledge of Henry and his colleagues with the mod¬ 
ern absurdity, we echo Henry’s words and exclaim, 


146 


Citizen or Subject? 


“We suppose that we are mad, or that our modern 
constitutional thinkers are so.” If Henry had read 
into that Fifth Article, if the opponents of the pro¬ 
posed Constitution had read into it, any **grant^^ of 
ability to state governments, certainly it was an absurd¬ 
ity for him to refer to those governments as “weak¬ 
ened, prostrated, enervated” by the proposed Con¬ 
stitution. 

And so, educated in the experience of those Amer¬ 
icans who assembled in those “conventions” named in 
the Seventh and Fifth Articles, we sit with them in 
the conventions of that earlier day and read that Fifth 
Article with them, while they decide to make it with 
the six other Articles. Living through their experi¬ 
ence, like them we have become “a people better ac¬ 
quainted with the science of government than any 
other people in the world,” so far as government is 
intended to secure individual liberty and happiness. 
When we sit with them, we intend not to forget, as 
they never did forget in those conventions, that this 
was the sole purpose of the Constitution they consid¬ 
ered and made, the purpose of securing individual 
liberty and happiness. In this respect, they differed in 
their whole philosophy of government with the new 
school of thought that, in our day, has its different 
manifestations of exactly the same philosophy of gov¬ 
ernment on the part of the Bolshevik in Russia and 
the minority in America which has dictated that gov¬ 
ernment enactment of the new constitution of govern¬ 
ment, known as the Eighteenth Amendment. 

The Americans of ’76 and ’87 set the individual 
liberty and freedom of man above everything in this 
world except the Divine Will of the Creator of man. 
In the Preamble of their Constitution, they echo the 


Conventions Create Government of Men 147 

declarations of their Statute of ’76. Their creed was 
that the laws of right and wrong are immutable; that 
the Creator made the individual man and granted 
human freedom to him; that such freedom is inher¬ 
ently subject only to the Divine Will, the immutable 
law of right and wrong, but that it may voluntarily 
become subject, by the will of the individual man, to 
the exercise of powers of interference which only he 
and his fellow men themselves can ever validly grant 
to government. 

“But what is government itself, but the greatest of 
all reflections on human nature? If men were angels, 
no government would be necessary. If angels were to 
govern men, neither external nor internal controls on 
government would be necessary. In framing a gov¬ 
ernment which is to be administered by men over men, 
the great difficulty lies in this: You must first enable 
the government to control the governed; and in the 
next place, oblige it to control itself.” (Madison or 
Hamilton, Fed. No. 51.) 

When we sit in the conventions of 1787 and 1788 
with the Americans who had this common concept of 
the only purpose of government of men, their concept 
is our own as we read with them the language of the 
Fifth Article. And it is impossible for us, as it is im¬ 
possible for them, to find concealed in that language 
the thought of a “grant” to government, a “grant” 
wffiich would challenge this concept of the very pur¬ 
pose of government. They are sitting in “conven¬ 
tions” assembled to determine whether American indi¬ 
viduals will enter into the new society of men, which 
is to be America. They have received the Fifth Arti¬ 
cle from Americans in Philadelphia, who have accom¬ 
panied the proposal of that Fifth Article with a letter 


148 


Citizen or Subject? 


which states, ‘‘Individuals entering into society must 
give up a share of liberty, to preserve the rest.” This 
statement is recognized by the Americans, in the “con¬ 
ventions” where we sit, as the exact statement of the 
concept of the sole purpose of a government of men. 
With that concept and that letter before us, how can 
we or the Americans with whom we sit find in the 
Fifth Article the remarkable idea that Americans, en¬ 
tering the society of America, are to give up all their 
liberties to the state governments in order that Amer¬ 
icans may preserve the rest of their liberties? 

In these modern days, however, there has asserted 
itself, in Bolshevik Russia and in the America of which 
we are the citizens, two distinct manifestations of an 
entirely different concept of the purpose of government 
than was the concept of the Americans in the “con¬ 
ventions.” Although the manifestation of the new 
concept by the Bolshevik in Russia has been different 
from the manifestation of the new concept by an ag¬ 
gressive and organized minority in America, the new 
concept, at the bottom of each manifestation, is ex¬ 
actly the same. It is the concept that the purpose of 
constituting a government of men is to secure the wel¬ 
fare of the state or community or nation and not the 
liberty and happiness of the individuals who compose 
the nation. This is the exact concept of the Bolshevik 
Russian and the Eighteenth Amendment American. 
To neither of them would the words of that letter 
from Philadelphia convey the slightest meaning, the 
words “individuals entering into society must give up 
a share of liberty, to preserve the rest.” In their 
mutual concept, the individual has no liberty which 
government need respect. In the Bible of their con- 


Conventions Create Government of Men 149 

cept, men cannot find the words which declare the 
basic American principle, that every just power of 
government must come from the individuals who are 
to be governed by its exercise. It is, however, a mis¬ 
nomer to call this common concept of the Bolshevik 
Russian and the Eighteenth Amendment American a 
new concept. It is identical with the old concept known 
as “Socialism,” the concept that community welfare, 
the prosperity and power and strength of a nation, are 
more important things than individual liberty and hap¬ 
piness and enjoyment of human freedom. It is a con¬ 
cept which sets the state (a political entity created by 
men) and the welfare of the state above what the 
Americans of ’76 and ’87 knew and proclaimed to be 
superior to all human creations, namely, the individual 
man, the noblest creation of the Divine Creator. In 
other words, the common concept of the Bolshevik 
Russian and the new Amendment American is but the 
reaction to the century-old concept whose repudiation 
was the main theme of the Declaration of Indepen¬ 
dence, the concept that individual men, the creation of 
God, are made for kings or governments or political 
entities. 

To those who hold such a concept there comes no 
shock when they are asked to imagine that the 
language of the Fifth Article implies a grant of ability 
to the state governments to do what those governments 
will with the liberties of the citizens of America. But 
we are sitting in “conventions” of Americans of a 
different type, Americans who, eleven years earlier, 
have repudiated forever the concept that men are made 
for kings or governments or political entities. And, if 
we wish to know what the Americans in these conven- 


150 


Citizen or Subject? 


tions think of the concept of the Bolshevik Russian and 
the Eighteenth Amendment American, we get our wish 
from the man who wrote the language of the Fifth 
Article. 

‘‘We have heard of the impious doctrine In the Old 
World,” the reactionary doctrine of modern Russia 
and of our own aggressive minority, manifested In two 
different disguises, “that the people were made for 
kings, not kings for the people. Is the same doctrine 
to be revived In the New, In another shape—that 
the solid happiness of the people Is to be sacrificed 
to the views of political institutions of a different 
form? ... As far as the sovereignty of the states 
can not be reconciled to the happiness of the people, 
the voice of every good citizen must be. Let the former 
be sacrificed to the latter. How far the sacrifice is 
necessary, has been shown. How far the unsacriffced 
residue will be endangered. Is the question before 
us.” 

This is the language of Madison, In The Federalist, 
Number 45, asking the Individual Americans to make 
the Constitution to secure their individual happiness. 
It will amaze us later herein to hear the thought of 
our modern “constitutional” thinkers that his Fifth 
Article makes the state governments (from whom that 
Constitution took sovereignty to secure the Individual 
happiness of the American citizen) a supreme and 
omnipotent government of the American citizens, a 
government knowing no will but Its own. Meanwhile 
let us forget this latter day nonsense and breathe again 
the real American atmosphere, where Individuals, en¬ 
tering a society, give up a share of their liberty, to 
preserve the rest. Let us sit with the real “constitu¬ 
tional” thinkers of America as they sat in the conven- 


Conventions Create Government of Men 15 i 

tlons and read with them the Fifth Article worded by^ 

Madison. This is what they read: 

# 

ARTICLE V 

The Congress, whenever two thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Con¬ 
stitution, or, on the Application of the Legislatures of 
two thirds of the several States, shall call a Convention 
for proposing Amendments, which, in either Case, shall be 
valid to all Intents and Purposes, as Part of this Con¬ 
stitution, when ratified by the Legislatures of three fourths 
of the several States, or by Conventions in three fourths 
thereof, as the one or the other Mode of Ratification may 
be proposed by the Congress; Provided that no Amendment 
which may be made prior to the Year One thousand 
eight hundred and eight shall in any Manner affect the 
first and fourth Clauses in the Ninth Section of the first 
Article; and that no State, without its Consent, shall be 
deprived of its equal Suffrage in the Senate. 

Sitting with these Americans, in their “conventions,’’ 
we note immediately, as they note, that the Article 
names themselves. And we note, as they note, that it 
names themselves, the individual American citizens, 
the “people” of the Preamble and the Tenth Amend¬ 
ment, by exactly the same name, “conventions,” as in 
the Seventh Article and as in the Resolution of the 
Philadelphia Convention, which proposed the only 
valid mode of ratification for the constitution of gov^ 
ernment of men in the First Article^ the mode which 
required ratification by the individual Americans them¬ 
selves, the “conventions” of the Seventh and the Fifth 
Articles. fVe cannot help noting it—as we intend 
never to forget it—because we are sitting with them, 
as the people of America, in the very “conventions” 
SO named in the Seventh Article. 


152 


Citizen or Subject? 


Having their vital and accurate knowledge of the 
difference between federal and national Articles, that 
only the latter kind exercises or grants power to inter¬ 
fere with individual human freedom, we recognize at 
once why the state legislatures are also mentioned in the 
Fifth Article, although they never can make national 
Articles. We know it is because those “legislatures,” as 
the Tenth Amendment expressly declares, retain their 
existing ability to make federal Articles or Articles 
which neither exercise nor grant power to interfere 
with individual freedom. And, sitting in those “con¬ 
ventions,” where Hamilton also sits, we recall his re¬ 
markable prophecy, just made to us in The Federalist^ 
as we were about to enter the “conventions” with the 
other Americans therein. “For my own part, I 
acknowledge a thorough conviction that any amend¬ 
ments v/hich may, upon mature consideration, be 
thought useful, will be applicable to the organization 
of the government, not to the mass of its powers/* 
{Fed. No. 85.) In that absolutely accurate advance* 
knowledge of the complete history of constitutional 
amendment from 1789 to 1917, we recognize the 
motive which prompted Madison and Hamilton^ on 
September 10, 1787, to add the mention of those leg¬ 
islative governments to the Fifth Article mention of 
the exclusive ability of the people or “conventions” to 
make all future Articles which do relate to the “mass 
of its powers” to interfere with individual freedom 
conferred upon the one government of America. We 
understand that these legislative governments are men¬ 
tioned in the Fifth Article, which we are now reading 
in the “conventions” of old, because those “legisla¬ 
tures” have an existing ability to make federal Articles 


Conventions Create Government of Men 153 

which relate to other things than the national power of 
government to interfere with individual freedom. 

Having thus satisfied ourselves, in those conven¬ 
tions, that we ourselves, the “people” of America, are 
mentioned in the Fifth Article as the sole makers of 
any future Article which exercises or grants power to 
interfere with our individual freedom, we turn with 
interest to the procedure which the Article establishes 
as the only constitutional mode of procedure in which 
that exclusive ability of our own may hereafter be 
evoked to exercise and be exercised. 

From the language of the Article itself, we know at 
once that it is simply the statement of a mode of pro¬ 
cedure in which our own unlimited ability or the limited 
ability of the state legislatures, when the occasion 
seems to arise for the respective exercise of either 
ability, are hereafter to be evoked by some body of 
men, playing the part which the Philadelphia Conven¬ 
tion has just played in evoking our own exclusive 
ability, the ability of the “people” or “conventions.” 

Outside the language of the Fifth Article itself, 
many other things make that fact clear to us. For in¬ 
stance, we recall what Madison has just told us. He 
had written this Article at Philadelphia. Then, asking 
the American people to prescribe this constitutional 
mode of procedure for the future exercise of either 
respective existing ability, he has explained to us, just 
before the convention in which we sit, what the Fifth 
Article means. 

“That useful alterations will be suggested by ex¬ 
perience, could not but be foreseen. It was requisite, 
therefore, that A mode for introducing them 
should be provided. The mode preferred by the Con¬ 
vention seems to be stamped with every mark of pro- 


154 


Citizen or Subject? 


priety. It guards equally against that extreme facility, 
which would render the Constitution too mutable; 
and that extreme difficulty, which might perpetuate 
its discovered faults. It, moreover, equally enables 
the general and State governments TO ORIGINATE the 
amendment of errors, as they may be pointed out by 
the experience on one side, or on the other.” {Fed. 
No. 43.) ^ 

Sitting in the conventions of more than a century 
ago, we are naturally uninfluenced (in our reading of 
plain English) by the story of a century which has not 
even yet begun, the century that later began in 1800. 
And so we get from his own words the knowledge that 
the author of the Fifth Article knew it to be nothing 
but a constitutional mode of procedure, for the future 
exercise of either ability to make Articles. We see 
that the mode leaves with either “the general and state 
governments” the ability to propose an Amendment to 
those with existing power to make the particular pro¬ 
posed Amendment. And we note, with intent to re¬ 
member, that the author of the Fifth Article, while he 
tells us about this reservation of existing abilities to 
propose amendments, pointedly does not tell us that the 
Article grants any power to any government or gov¬ 
ernments to make Amendments. In other words, we 
know that the Fifth Article reserves to the general 
government and to the state governments exclusively 
what otherwise they and every one else would have 
had—what Madison himself called “the unauthorized 
privilege of any respectable citizen or body of citizens” 
—the ability to propose, but that it does not grant to 
any of those governments or all of them collectively 
the ability which none of them ever had or can have, 
the ability to make, constitutional Articles of a national 


Conventions Create Government of Men 155 

kind, which relate to interference with individual free¬ 
dom. With this knowledge confirmed by the clear 
statement of the author of the Fifth Article, we read 
with interest its procedural provisions about the orig¬ 
inating of new Articles, about their drafting and their 
proposal and the proposal of a mode of ratification 
for them, after they have been drafted and their nature 
has determined who can make them. 

Sitting in those conventions of old, we are in the 
company of many of the men who were at the Phila¬ 
delphia Convention. In Virginia we see Madison and 
Randolph and Mason and others; in New York we see 
Hamilton and others; in Pennsylvania we see Wilson 
and others; in South Carolina we see the Pinckneys 
and others. That is our experience in all the conven¬ 
tions. On all sides, among the American people 
assembled therein, are those familiar with and talking 
about the work at Philadelphia and the great debate 
there, in which was ascertained, from the character of 
the Articles drafted there, which maker of Articles, 
the state legislatures, with their existing ability to make 
federal Articles, or the “people” themselves, the “con¬ 
ventions,” with their existing unlimited ability to make 
all Articles, could make the Articles drafted and about 
to be proposed. These men, by their presence and 
their words, remind us how the nature of their First 
Article, the fact that it constituted government to in¬ 
terfere with human freedom, compelled the announce¬ 
ment of the decision that legislative governments could 
never make that kind of an Article. These men, by 
their presence and their words, remind us how they 
reached the ascertainment of the fact which compelled 
their Proposing Resolution to propose a mode of rati¬ 
fication by the “people” themselves, by the “conven- 


Citizen or Subject? 


156 

tions” of the Seventh and the Fifth Articles. They 
remind us, as one of the men with us later said in the 
Supreme Court, that all assembled in our “conven¬ 
tions” feel and acknowledge the legal necessity that 
every power to interfere with individual freedom must 
be derived by direct grant from the people. And, 
sitting in those conventions with them, where we all 
read the Fifth Article they are asked to make, we 
recognize with certainty that it prescribes that the 
Congress shall do exactly what the Philadelphia Con¬ 
vention has just done—propose, and nothing more. 

The words of the Fifth Article tell us that only 
Congress shall draft and propose a new Article, just as 
the Philadelphia Convention drafted and proposed its 
new Articles; that, after Congress has drafted its new 
Article and is about to propose it, just as the Phila¬ 
delphia Convention did, when it exercised no power at 
all, Congress shall examine carefully the nature of the 
drafted Article and, having ascertained by such ex¬ 
amination which existing ability to make Articles (the 
limited ability of legislative governments or the unlim¬ 
ited ability of the “people” or “conventions”) is com¬ 
petent to make that particular Article, Congress shall 
propose ratification by the ability which can make the 
proposed Article. 

We are not misled because the Article prescribes 
this one constitutional mode to evoke the existing lim¬ 
ited ability or the existing unlimited ability. Providing 
a CONSTITUTIONAL mode for the exercise of either 
does not lessen one ability or increase the other. By 
reason of our education, we know the difference be¬ 
tween the revolutionary exercise of existing power and 
the constitutional exercise of existing power. Because 
we have become of the “people better acquainted with 


Conventions Create Government of Men 157 


the science of government than any other people in the 
world,” we kno^v that to do something in a revolu¬ 
tionary manner does not necessarily mean to do it by 
bloodshed or on the battle-field. We know that to do 
something in a revolutionary manner means to do it 
outside of any legally prescribed mode of procedure 
for the exercise of existing power. We know that to 
do the same thing, in a constitutional mode, is to do it 
in some mode prescribed by human law or constitution. 
And that is why we understand, as did the men with 
whom we are sitting in those conventions, that Con¬ 
gress, in the future, is to do exactly what the Phila¬ 
delphia Convention did and nothing more. Congress 
is to do it constitutionally (where the Philadelphia 
Convention did it outside of any human law and in a 
revolutionary manner) because the Fifth Article com¬ 
mands that Congress alone shall do it. Congress, 
when doing it, will be exercising no power. The Phila¬ 
delphia Convention exercised no power when it did 
exactly the same things. And, when Congress does 
it. Congress will be bound, as Philadelphia was bound, 
to ascertain and propose the mode of ratification by 
which the proposed Article will be ratified by ratifiers 
competent to make that particular kind of an Article. 

As we sit in the “conventions” and keep clearly in 
our mind that the “conventions” and the “state legis¬ 
latures” (both of which are mentioned in the Fifth 
Article) each have existing but very different abilities 
to make Articles, every part of the language of the 
Fifth Article confirms our knowledge that the whole 
Article is no “grant” of power but is a “constitutional” 
mode for the exercise of existing powers. 

Long after the conventions in which we sit, the 
Supreme Court paid the tribute to those who wrote the 


158 


Citizen or Subject? 


Fifth Article that they were “masters of apt, precise 
and classic English.” Keeping this thought In mind, 
our attention is directed to the three-time use of the 
one word “propose” In the Fifth Article. We know 
that to use the same word three times In one sentence 
Is very poor English unless there Is a distinct and 
definite Intent and purpose that the meaning each time 
shall be identically the same. Such definite Intent and 
purpose Is the only deduction from what would other¬ 
wise be the inexcusable tautology of the language of 
the Fifth Article. So, when we read that Congress 
“shall propose amendments” or shall “call a conven¬ 
tion for proposing Amendments” and that “one or the 
other mode of ratification may be proposed by the 
Congress,” we know with certainty that each use of the 
word “propose” is Intended to convey an Identical 
shade of meaning. From which we know that, as the 
proposal of a new Article (by Congress or a Conven¬ 
tion) will be a mere proposal and will not make the 
proposed Article valid, so also the Congress proposal 
of a mode^of ratification will remain a mere proposal 
and will not make that proposed mode valid for that 
proposed Article, unless its proposed ratifiers are com¬ 
petent to make that particular kind of an Article. 
This Is what they had just known at Philadelphia 
about their own proposals (both of Articles and of 
mode of ratification) to us as we sit in the “conven¬ 
tions.” And so, in these conventions, we know the 
proposals mentioned in the Fifth Article to be Identical 
(In nature) with the proposals made from Phila¬ 
delphia. We know the procedure outlined in the Fifth 
Article to be exactly the same procedure as has just 
been followed at Philadelphia. We know that our 
ratification (In these “conventions”) of that procedure 


Conventions Create Government of Men 159 

will be our approval of the procedure they followed 
at Philadelphia and will be its prescription as the 
CONSTITUTIONAL procedure hereafter to be followed 
when either existing ability, that of the state govern¬ 
ments or that of ourselves in “conventions,” is to be 
hereafter evoked to exercise. From all of which we 
recognize that, if Congress should propose a mode of 
ratification by state legislatures and the proposed Ar¬ 
ticle is a grant of power to interfere with the individual 
liberty of the American citizen, the state legislatures 
will remain just as incompetent to make that Article 
as they were known to be at Philadelphia when Madi¬ 
son and his colleagues held them to be incompetent 
to make their proposed Article of that kind, the First 
Article. And so we understand that the mere Congress 
proposal of a mode of ratification (for such an Ar¬ 
ticle) by state governments will not give state govern¬ 
ments abilitv to make such an Article. 

Sitting in those old conventions, we now have read 
the procedural provisions of the Fifth Article up to 
the point where proposals bring, in a cofistitutional 
manner, a proposed new Article to makers with exist¬ 
ing ability to make the particular Article which has 
come to them. 

We now read with interest the next chronological 
step of the procedural provisions, the mention of the 
two existing makers of Articles—the state legislatures, 
makers of federal or declaratory Articles, and the 
“conventions” of the American citizens, makers of any 
Article. 

We are actually sitting in “conventions” Identical 
with those named In the Fifth Article. We are in 
the “conventions” mentioned In the Seventh Article 
and named therein by exactly the same word as Is used 


i6o Citizen or Subject? 

in the Fifth Article, the word “conventions.” Both 
Seventh and Fifth Articles have been worded at Phila¬ 
delphia. We, assembled in the “conventions” named 
in the Seventh Article, are the whole American people. 
In our conventions, so assembled, we are to make both 
the Seventh and the Fifth Articles, with their common 
use of exactly the same word “conventions.” And so 
we understand, with a knowledge which nothing can 
disturb, that the “conventions” of the Fifth Article 
mean exactly what the “conventions” of the Seventh 
Article mean. Thus we know, with knowledge which 
nothing can disturb, that the “conventions,” named in 
both Articles, are the American people, only competent 
makers (in 1787 or at any future time) of national 
Articles which interfere with or grant power to inter¬ 
fere with the individual freedom of the American 
citizen. 

We recall vividly the proposal that came from 
Philadelphia eleven years earlier or in 1776, that the 
Americans in each former colony constitute a govern¬ 
ment with such powers to interfere with the human 
freedom of its citizens. We recall that such govern¬ 
ments were constituted in what Marshall states to be 
the only way in which men can act safely, effectively 
or wisely, when constituting government of themselves, 
namely, by assembling in “conventions.” 

We also recall vividly the proposal that came from 
the same Philadelphia a year later or in 1777, that the 
states constitute a federal government of states. And 
we recall that the state legislatures, because they pos¬ 
sessed existing ability to make federal Articles, did 
validly make the federal Articles suggested in that 
proposal. 

We also recall, that the new Constitution, which is 


Conventions Create Government of Men i6i 

before us in the “conventions” named in the Seventh 
Article, is to be both a national Constitution, consti¬ 
tuting government of men, and a federal Constitution, 
constituting government of states. And we recall that 
only one of the present Articles in that proposed Con¬ 
stitution, the First Article, constitutes government of 
men by granting government power to interfere with 
individual freedom. And we recall, with Hamilton 
in the Convention beside us, the probability that all 
future Articles in that dual Constitution, will probably 
be of the federal or the declaratory kind which the 
existing ability of state legislatures can make. 

And so we understand why Madison and Hamilton, 
in their Fifth Article, mention that existing ability of 
the state legislatures to make Articles which do not 
relate to interference with individual freedom, as well 
as they mention our own exclusive ability, the ability 
of the “conventions” of the American people, to make 
Articles which do relate to interference with individual 
freedom. 

And, sitting in those conventions with the “people 
better acquainted with the science of government than 
any other people in the world,” when we read the 
language of the Fifth Article, it is impossible for us 
to make the monumental error of assuming that the 
mention of the two existing abilities adds anything to 
one or subtracts anything from the other. 

And so, with our minds in those “conventions” free 
from any possibility of such monumental error, we 
now read and clearly understand the most important 
words in the constitutional mode of procedure for ex¬ 
isting powers, which we know as the Fifth Article. To 
none of the Americans in those conventions is there 
any doubt, to no American, who understands what 


162 Citizen or Subject? 

America is, can there ever be any doubt, what are the 
most important words. They are the words “in three 
fourths thereof” immediately following the words 
which name the very kind of “conventions” in which 
we sit. These words, “by conventions in three fourths 
thereof,” bring home to us the marvel of what our 
“conventions” are doing. 

In them sit the people of America, possessors of the 
supreme will in America, assembled in their respective 
states, as free men and not as the citizens of the par¬ 
ticular state in which each convention of Americans 
assembles. 

We realize, as the Preamble of the Constitution be¬ 
fore us expressly declares, what is the first proposal 
upon which we act affirmatively, when we say “Yes” 
to the whole proposal from Philadelphia. The first 
effect of that “Yes” is that we, that part of the Ameri¬ 
can people in that particular state, do consent (with 
the Americans in eight or more other willing states) 
to join the new nation or political society of men, which 
is to be America, and that we consent to be, with those 
other Americans, the citizens of the new nation as soon 
as the Americans in eight other willing states give their 
similar “Yes.” We are well aware, as we sit in one 
of the “conventions,” that the Philadelphia proposal 
has left it open for the free Americans in each state to 
become members or not of the new society as they 
please, and that, therefore, the joining of that society, 
by the Americans in at least nine states, will mean that 
the new nation is created by unanimous action of the 
majority in every state whose Americans become citi¬ 
zens of America. 

From which we realize that the original grants of 
national power by its citizens to the only government 


Conventions Create Government of Men 163 

of the new nation will be the second effect of the “Yes” 
from the Americans in nine conventions. Thus these 
original grants, the First Article grants of enumerated 
power to interfere with the individual freedom of the 
American citizen, will be made simultaneously by the 
majority of Americans in every state where Americans 
become citizens. 

But, once these early Americans leave those first 
“conventions,” the whole American people will con¬ 
stitute the members or citizens of the new nation, 
America. 

The people of these United States constitute one nation. 
They have a government in which all of them are deeply 
interested. (Justice Miller in the Supreme Court, Cran¬ 
dall V. Nevada, 6 IVall. 35.) 

As In any other republican nation, all national 
powers must be granted by its members or citizens. 
Any future national power, not granted by the citizens 
themselves, will be neither just nor valid because power 
of the American government to Interfere with the free¬ 
dom of the American citizen will not have been granted 
by those to be governed by Its exercise. 

But, when the whole American people leave these 
“conventions” as the united citizens of America, al¬ 
though It will be wise and proper and necessary that 
American citizens shall hereafter assemble In “conven¬ 
tions” in their respective states for the making of new 
proposed grants of power to Interfere with their free¬ 
dom, It will no longer be necessary that a “Yes” from 
every “convention” should be given to any future grant 
of such power. When the whole American people as¬ 
sembled In those first conventions, a “Yes” from every 
“convention” was necessary because that “Yes” meant 


164 Citizen or Subject? 

the willingness of the Americans In that state to be¬ 
come citizens of America. But, once they all have 
become its citizens, it Is In that capacity—and not as 
citizens of each respective state—that the American 
government will Interfere with their individual free¬ 
dom. 

And It now dawns upon us, probably for the first 
time, how imperative it is that the new Constitution 
should contain an explicit command, prescribing how 
the vote of each “convention” should count and how 
many “convention” votes should be sufficient and neces¬ 
sary for any future proposed grant of power to in¬ 
terfere with the freedom of American citizens. This 
brings home to us the impressive and important mean¬ 
ing of the words “in three fourths thereof” after the 
word “conventions” in the Fifth Article. 

If they had not been written therein by the genius of 
the men at Philadelphia, the method of counting the 
vote of each “convention” and the number of “conven¬ 
tion” votes CONSTITUTIONALLY requisite hereafter for 
a new grant of national power would be a matter of in¬ 
finite dispute. And so we recognize and pay our tribute, 
as we.sit in one convention of the first American citi¬ 
zens, to the wonderful foresight of Madison and Ham¬ 
ilton and their colleagues at the Philadelphia Conven¬ 
tion which has just completed its labors. That tribute 
is evoked by the words “three fourths thereof” after 
the word “conventions.” 

We see that these words end all possibility of dis¬ 
pute In two Important respects where dispute would 
be certain If the constitutional mode of procedure 
did not contain oiir command that, when future “con¬ 
ventions” are asked for further grant of power to in¬ 
terfere with our Individual freedom, the “Yes” of each 



Conventions Create Government of Men 165 

convention shall count as one “Yes” and a “Yes” from 
three fourths of the “conventions” shall be both neces¬ 
sary and sufficient to make a new grant of such power. 
And, as we dwell upon these amazingly important 
words, their presence in the Fifth Article compels a 
greater tribute to the men who wrote them than that 
demanded by the fact that this ends the possibility of 
the disputes we have mentioned. It grows upon us that 
these words are among the most important securities 
to individual liberty in the whole Constitution. With 
increasing admiration for the men at Philadelphia, we 
sit in those early “conventions” and recall how much 
Madison and his colleagues have just told us in The 
Federalist about the danger to individual right from 
the tyranny of the citizens of a republic themselves, 
whether that tyranny is attempted by a majority or an 
aggressive minority of such citizens. We recall The 
Federalist, Number 51, and its forceful exposition of 
the merits of the proposed Constitution and its re¬ 
markable distribution of powers (powers granted to 
the new government in the First Article, powers left 
with each state over its own citizens and powers 
retained by the American people themselves) as se¬ 
curity for individual rights. 

“In the compound republic of America, the power 
surrendered by the people is first divided between two 
distinct governments, and then the portion allotted to 
each subdivided among distinct and separate depart¬ 
ments. Hence arises a double security to the rights of 
the people. . . . It is of great importance in a re¬ 
public not only to guard the society against the op¬ 
pression of its rulers, but to guard one part of the 
society against the injustice of the other part. Dif¬ 
ferent interests necessarily exist in different classes 


i66 


Citizen or Subject? 


of citizens. If a majority be united by a common in¬ 
terest, the rights of the minority will be insecure. 
There are but two methods of providing against this 
evil: The one by creating a will in the community 
Independent of the majority—that is, of the society 
itself; the other, by comprehending in the society so 
many separate descriptions of citizens as will render 
an unjust combination of a majority of the whole very 
Improbable, if not Impracticable. The first method 
prevails in all governments possessing an hereditary or 
self-appointed authority. This, at best, is but a pre¬ 
carious security; because a power Independent of the 
society may as well espouse the unjust views of the 
major, as the rightful interests of the minor party, and 
may possibly be turned against both parties. The 
second method will be exemplified in the federal re¬ 
public of the United States. Whilst all authority in it 
will be derived from and dependent on the society, the 
society itself will be broken into so many parts. In¬ 
terests, and classes of citizens, that the rights of indi¬ 
viduals, or of the minority, will be in little danger 
from Interested combinations of the majority. . . . 
Justice is the end of government. It is the end of civil 
society. It ever has been and ever will be pursued until 
it be obtained, or until liberty be lost in the pursuit. In 
a society under the forms of which the stronger faction 
can readily unite and oppress the weaker, anarchy may 
as truly be said to reign as in a state of nature, where 
the weaker individual is not secured against the vio¬ 
lence of the stronger. ... In the extended republic 
of the United States, and among the great variety of 
Interests, parties, and sects which it embraces, a 
coalition of a majority of the whole society could 
seldom take place on any other principles than those of 


Conventions Create Government of Men 167 

justice and the general good. . . . It is no less cer¬ 
tain than it is important, understanding the contrary 
opinions which have been entertained, that the larger 
the society, provided it lie within a practical sphere, 
the more duly capable it will be of self-government. 
And, happily for the republican cause^ the practicable 
sphere may be carried to a very great extent, by a 
judicious modification and mixture of the federal 
principle” {Fed. No. 51.) 

In those important words of the Fifth Article, “in 
three fourths thereof” after the word “conventions,” 
we now recognize the judicious mixture of the federal 
principle In our own command which controls our 
future constitutional exercise of our exclusive 
ability to create new power to interfere with our Indi¬ 
vidual freedom. 

These words do not challenge or disturb the legal 
American necessity that our American government 
must get any new power of that kind from us ourselves, 
assembled in our “conventions.” But, with a practical 
wisdom never exceeded In framing the “constitution” 
of a self-governing nation, these words impose an 
amazingly effective check upon the existing ability of a 
majority or aggressive minority. In the republic which 
is America, to interfere with Individual rights. These 
words do not attempt to destroy or alter that existing 
ability of the citizens of the new republic. On the 
contrary, these words recognize the existence of that 
ability. But, with the wisdom which means so much 
security to every Individual right in America, these 
words make It Impossible that such ability can be con¬ 
stitutionally exercised unless a majority or an ag¬ 
gressive and organized minority, when seeking new 
government power to interfere with the individual 


i68 


Citizen or Subject? 


freedom of the American citizen, obtain a majority 
support from the American citizens residing in every 
one of three fourths of the state in America. 

Leaving (just for a moment) the conventions of the 
old days, we of this generation realize with gratitude 
the check so provided. We understand now, as we 
never understood before, why the organized minority 
which demanded that government write the new 
Amendment into our Constitution was driven by this 
constitutional check to ignore the plain fact that the 
new Amendment can never validly be put into the Con¬ 
stitution (if we still are citizens and not subjects) un¬ 
less a “Yes” from the “people” themselves, the “con¬ 
ventions” of the Fifth Article, is obtained from three 
fourths of those “conventions.” We realize that the 
organized minority in question must support their 
proposition on the concept that Madison and Ham¬ 
ilton, who introduced and seconded the Fifth Article 
at Philadelphia, intended that Article “to create a will 
in the community” (which is America) “independent” 
of the supreme will of the American people themselves, 
intended it to create that anomaly of a superior will 
to the supreme will and to make that superior will the 
will of the legislative governments of a fraction of the 
states. We refer that organized minority to the 
quoted words of Madison or Hamilton, referring to 
such creation of a will independent of the people them¬ 
selves: “This, at best, is but a precarious security, be¬ 
cause a power independent of the society may as well 
espouse the unjust views of the major, as the rightful 
interests of the minor party, and may possibly be 
turned against both parties. The second method [not 
the creation of a will independent of the human mem¬ 
bers of the society] will be exemplified in the federal 


Conventions Create Government of Men 169 

republic of the United States,” the very Constitution of 
which contains the Fifth Article. We average Ameri¬ 
cans are now satisfied, beyond dispute, that neither 
Madison nor his associates in the early conventions, 
to which we will now return, understood or meant that 
the Fifth Article would or should create such an inde¬ 
pendent will. 

Sitting again in the conventions of old, we recall ex¬ 
actly the same thought expressed by Madison himself 
in The Federalist, No. 10, where he says: “When a 
majority is included in a faction, the form of popular 
government, on the other hand, enables it to sacrifice 
to its ruling passion or interest both the public good 
and the rights of other citizens. To secure the public 
good and private rights against the danger of such a 
faction, and at the same time to preserve the spirit and 
form of popular government, is then the great object 
to which our inquiries are directed. . . . Either the 
existence of the same passion or interest in a majority 
at the same time must be prevented, or the majority, 
having such co-existent passion or interest, must be 
rendered, by their number and local situation, unable to 
concert and carry into effect schemes of oppression.” 
These thoughts, from the worder of the Fifth Article, 
sink deep into our minds and hearts as we sit in those 
conventions. They come before us with startling 
clearness, when we read his words in that Article, 
^^conventions in three fourths thereof,” and his words 
in reference to that Fifth Article mode of procedure, 
“In requiring more than a majority, and particularly in 
computing the proportion by states, not by citizens, it 
departs from the national and advances toward the 
federal character.” {Fed. No. 39.) 

We realize that his mode of procedure is national. 


170 Citizen or Subject? 

? 

in its strict conformity to the Statute of ’76, that all 
power over the people must come directly from the 
people, but that a judicious mixture of the federal sys¬ 
tem, in counting the votes of the people, is the best 
check human ingenuity has yet devised to protect indi¬ 
vidual rights against a tyrannical majority or an ag¬ 
gressive minority. 


CHAPTER XII 


TWO ARTICLES NAME “CONVENTIONS” 

A S we sit In those conventions and dwell upon the 
wisdom of the practical thought which inspired 
those words, “in three fourths thereof” after the word 
“conventions,” we know why the people with whom 
we sit compelled the tribute that they grasped the 
science of government better than any other people In 
the world. The one aim of all of them was the happi¬ 
ness and welfare of the individual. The welfare or 
prosperity of the political entitles, which we know as 
America and the respective states, were of no Impor¬ 
tance to these people, except as they contributed to the 
welfare of the individual. The prestige and the power 
of each and every government In America and of all 
governments in America together were of no Impor¬ 
tance to these people, except as they contributed to the 
welfare of the individual. 

And when we sit with them in their conventions, 
after living with them through their experience from 
1775, we realize (as we have never realized be¬ 
fore) that the Statute of ’76 was enacted, that 
the national constitutions of government were made 
by the people in each colony, that the sacrifices of 
the Revolution were endured for eight years, that 
the federation of states was established by states in 
1781, that the wisdom and ability and patriotism of 
America had just assembled at Philadelphia in 1787 

171 


172 


Citizen or Subject? 


and made its proposal which we are considering 
in these conventions— all that the welfare of the 
INDIVIDUAL might he secured. We realize that the 
wisdom and ability and patriotism of America, at 
Philadelphia, had labored for months to ascertain, 
by the light of all human experience, in what pro¬ 
portion {solely to secure the welfare of the individual) 
power to interfere with individual freedom ought 
to be surrendered at all to governments and re¬ 
tained by the people, and in what proportion the 
quantum of surrendered power should be left with 
each state government over its own individuals and 
given to the new general government over its indi¬ 
vidual citizens. We realize that the wisdom and 
ability and patriotism of America, at Philadelphia, 
had known that no governments, then or in the future, 
if individual welfare was to be secured, could ever 
legally determine either proportion or could ever alter 
either proportion, when once established by the su¬ 
preme will in America, the “people” of the Preamble 
and Tenth Amendment, the “conventions” of the Sev¬ 
enth and Fifth Articles. 

And so we, of this later generation, sit in those “con¬ 
ventions” of the Seventh Article and we read the Fifth 
Article, where the same “conventions” are named, and 
look with awe upon the practical wisdom which dic¬ 
tated these words “in three fourths thereof,” after that 
mention of those “conventions” of the American 
people in the future. We realize now that those words 
are among the greatest securities to individual welfare 
written into the proposed Constitution by the wisdom 
and ability and patriotism of America, at Philadelphia. 
In that Constitution, other great securities protect 
individual welfare against usurpation from outside 



Two Articles Name “Conventions” 


173 


America and against usurpation by government or 
governments in America beyond the exercise of the 
national powers granted to each government by its own 
respective individual citizens. But this particular great 
security of individual welfare, the words “in three 
fourths thereof,” secures individual welfare against 
the unjust oppression of a majority or an aggressive 
minority of the Americans themselves unless that ma¬ 
jority or minority secure a majority of the Americans 
in each of three fourths of the states to support the 
unjust oppression of individual welfare. 

And thus, in those conventions, zve realize, perhaps 
for the first time, that the ifnportant statements of the 
Seventh and the Fifth Articles are, in substance, identi¬ 
cal statements by the supreme will of the American 
people. They are respectively the two statements or 
commands of the citizens of America, the new nation, 
as to WHEN the grants of power in the First Article 
shall be the grant of the American citizens and as to 
WHEN the grants of any similar power, in the genera¬ 
tions to come, shall he the grants of the American 
citizens. In their language, in their purpose and in 
their plain command, both statements are exactly alike 
in substance. The statement or command of the 
American people, in the Seventh Article, is that the 
constitution of the government of interference with 
individual freedom, the First Article, shall be the Con¬ 
stitution of the American people zvhen nine of the 
“conventions” (named in the Seventh and Fifth Arti¬ 
cles) shall have said “Yes” to that constitution, to the 
enumerated grants of national power in the First Arti¬ 
cle. The statement or command of the American 
people, in the Fifth Article, is that any new proposed 
constitution of government of interference with indi- 


174 


Citizen or Subject? 


vidual freedom of the American citizen (the supposed 
Eighteenth Amendment being the first new constitution 
of that kind) shall be the Constitution of the American 
people three fourths of the “conventions” (named 
in the Seventh and the Fifth Articles) shall have said 
“Yes” to that new proposed constitution. 

At this point, we average Americans, sitting with 
those amazing Americans in their “conventions,” fix 
firmly in our minds, with intent never to forget, the 
fact that the “conventions” of the Seventh Article 
command are indisputably the American people them¬ 
selves; that the “conventions” of the Fifth Article 
command are identical (except as to the time in which 
the American people assemble) with the “conventions” 
of the Seventh Article command; and that, therefore, 
the “conventions” of the Fifth Article command are 
also the people of America themselves. But the whole 
people of America are the “We, the people” of the 
Preamble. They are the only reservee of the Ninth 
Amendment, “the people” therein. They are the 
“most important factor” and reservee of the Tenth 
Amendment, “the people” therein. Wherefore, we 
grasp clearly why they are mentioned in the Fifth 
Article, because they have no government attorney in 
fact—as they could not have if we are “citizens of 
America”—to surrender what they reserved to them¬ 
selves in the Ninth and Tenth Amendments. 

Sitting in those conventions, we recall the limited 
ability of state legislatures, each speaking for its own 
state, to make federal Articles, Articles that neither 
interfere nor give power to interfere with individual 
liberty, the ability that made all the federal Articles 
of 1781. And we recall that the Constitution does not 
take that ability from the “states respectively” and 


Two Articles Name “Conventions” 175 

their governments but reserves It to the “states respec¬ 
tively” and their governments, as the Tenth Amend¬ 
ment expressly declares. And so we understand the 
mention of that limited ability in the Fifth Article in 
the words “ratified by the legislatures of three fourths 
of the several states.” And, educated by the experi¬ 
ence of the amazing Americans with whom we sit, we 
realize the meaning of this particular statement or 
command of the supreme will, the people of America. 
That supreme will is creating a new nation out of its 
human possessors. It is destroying forever the com¬ 
plete Independence of the respective states, but leaving 
each of the states a political entity with citizens and 
much Independence. It Is Incorporating the system of 
a federal unlon of states Into the new national system 
of a union of all Individual Americans, and it is sub¬ 
ordinating the members of the federal union and also 
the federation Itself to the union of human beings, to 
the supreme will In America, the will of the citizens of 
that nation. Therefore, as each state is no longer 
completely Independent, It Is no longer necessary that 
every member of the federal union shall utter its “Yes” 
to the making of any new Article of the federal or de¬ 
claratory kind, the only kind which governments ever 
can make. And so we clearly understand, as the early 
Americans in their conventions understood at once, 
that the words “ratified by the legislatures of three 
fourths of the several states” was to be the command 
of the American people, sitting In those conventions, 
that a “Yes” from three fourths of the state govern¬ 
ments would, thereafter, be necessary and sufficient for 
the making of a new proposed federal or declaratory 
Article. And we do not understand, as the Americans 
in those conventions never understood, that those 


176 Citizen or Subject? 

words implied any ^*grant^^ of ability to the state gov¬ 
ernments to make any Articles in otir Constitution, 
much less Articles by which governments interfere or 
give power to interfere with the individual freedom of 
the American citizen outside the matters enumerated 
In our First Article. 

On the contrary, it becomes amazingly clear to us 
that the “conventions” of the American citizens are 
mentioned In the Fifth Article because the American 
citizens are the Important reservee of the Ninth and 
Tenth Amendments. And It becomes equally clear 
that the “legislatures of the several states” are men¬ 
tioned In the Fifth Article because the “states respec¬ 
tively” are the lesser reservees named In the Tenth 
Amendment. 

The Tenth Amendment tells us that no power of any 
kind Is given, by the new Constitution, to any grantee 
except to the new nation and its government, the 
American government. It tells us that some powers, 
which each state had hitherto possessed, are taken 
from It; that the exercise of other powers, which each 
state had hitherto possessed, are now prohibited to 
It; and that only the other powers {which each state 
had hitherto possessed) are left with that state by the 
command of the supreme will In America, ourselves, 
the citizens of America. It tells us emphatically that 
no new powers of any kind are given to any state or 
to any collection of states or to their governments. It 
tells us that the American people. In making their Con¬ 
stitution, left each state and each state government 
powerless, as they had been, alone or In combination 
with other governments, to Interfere with the indi¬ 
vidual rights of any human being outside that par¬ 
ticular state. And finally it tells us, what the Supreme 


Two Articles Name “Conventions” 177 

Court has expressly declared to be the most important 
declaration in that Tenth Amendment, that we our¬ 
selves, the individual citizens of America, the “people” 
of the Preamble and of that Tenth Amendment, retain 
(secure from any valid exercise by any government 
or governments in the world and only capable of exer¬ 
cise by ourselves in our “conventions”) every power 
to interfere with the individual freedom of the Ameri¬ 
can citizen except in the matters enumerated in the 
First Article. 

And so, in those “conventions,” we need no con¬ 
stitutional thinker to tell us the simple fact that only 
those who have can give. If the state legislatures 
have not, as indisputably they have not, any ability to 
exercise or to grant power of general interference with 
individual rights throughout America, and if, as the 
Tenth Amendment expressly declares, the entire Con¬ 
stitution adds naught to their existing ability to make 
Articles of another kind, the Fifth Article merely pre¬ 
scribes the constitutional mode of procedure, in which, 
by command of the American people, that existing and 
limited ability shall thereafter be exercised. 

And likewise, if the American people themselves, the 
Seventh Article “conventions” in which we are sitting, 
have exclusive ability to exercise or to give power of 
general interference with their own individual rights, 
and if, as the Ninth and Tenth Amendments together 
expressly state, those “conventions” retain that ex¬ 
clusive ability, clearly the Fifth Article reference to 
the same “conventions” of the American citizens is but 
prescribing the constitutional mode of procedure in 
which, by command of the American people, that ex¬ 
clusive ability of their own shall thereafter be exer¬ 
cised. When the “apt, precise and classic English” of 


178 Citizen or Subject? 

the Fifth Article permits no other meaning, we cannot 
imply that the Article intends to grant what one sup¬ 
posed grantee (who is the supposed grantor) already 
has and what the other cannot ever have. Nor can 
we imply that the Article intends to provide a consti¬ 
tutional mode of procedure in which those, who have 
not, may give. Moreover, as this absurd implication 
would make the individual American people *‘sub- 
jects,” as soon as they adopted that Article, we now 
know, with absolute certainty, that the Americans, in 
the “conventions” in which we are sitting, adopted it 
as their fundamental law of procedure with the only 
meaning which its own “apt, precise and classic Eng¬ 
lish” permits. 

We have now read. In those conventions of old and 
with the Americans therein who made it, all of the 
Madison Fifth Article save the two exceptions at the 
end thereof, beginning “provided that no amendment, 
etc.” In those conventions, the meaning of those two 
exceptions needs but a moment’s thought. One excep¬ 
tion is that no change may be constitutionally made, 
prior to 1808, In relation to the existing evil of human 
slavery. The other exception is that no change may 
be constitutionally made which shall give any state 
greater representation in the Senate than each other 
state. These are not exceptions to any power 
granted!* in the Article. No power of any kind, as 
we already know, is granted** anywhere In the Article, 
but the Article does mention two existing abilities, one 
limited and the other unlimited, and prescribes the con¬ 
stitutional mode of procedure In which each of the 
respective existing abilities may be exercised. The 
exceptions simply mean that the Article provides no 
constitutional mode of procedure In which may be ex- 


Two Articles Name “Conventions” 179 

erclsed existing ability to change the Constitution in 
the matters mentioned In the two exceptions. 

We average Americans have now examined care¬ 
fully the record of the wording of all our Constitution 
at Philadelphia and particularly the record of the 
wording of the three Articles, the First and the Sev¬ 
enth and the Fifth, which either purport to give or 
mention future giving (by the “people,” who alone 
can give) power to interfere with the individual free¬ 
dom of the American citizen. Furthermore, we have 
sat In the “conventions” of the American people. In 
which all those worded Articles were made, and have 
read, with the Americans In those “conventions,” the 
apt, precise and classic English of the Fifth Article, 
which told them, as it tells us^ that the Article merely 
prescribes the constitutional mode of procedure. In 
which thereafter can be exercised either the existing 
limited ability of the state governments or the existing 
unlimited ability of the American citizens themselves, 
the “conventions” of the Seventh and the Fifth Arti¬ 
cles. We are certain, therefore, that nowhere In the 
Constitution, made In those early “conventions,” can 
the most Ingenious mind discover what would have 
been the greatest blunder In the history of mankind, 
anything which changed the actual and legal relation 
of the Individual American to government and made 
him the “subject” of any government or collection of 
governments in America. It would be unwise, how¬ 
ever, for us to leave those conventions without listen¬ 
ing to some few of the great Americans, who sat 
therein, telling us how the new Constitution does secure 
the status of the free Individual American and protect 
his Individual freedom from all usurpation by any 
government or governments in America. 


CHAPTER XIII 


CONVENTIONS KNOW '^CONVENTIONS'^ ARE "THE 

people" 

‘‘TT7HEN a single government is instituted, the in- 
▼ V dividuals of which it is composed surrender to 
it a part of their natural independence, which they be¬ 
fore enjoyed as men. When a confederate republic is 
instituted, the communities of which it is composed sur¬ 
render to it a part of their political independence, 
which they before enjoyed as states. . . . Since states 
as well as citizens are represented in the Constitution 
before us, and form the objects on which that Con¬ 
stitution is purported to operate, it was necessary to 
notice and define federal as well as civil liberty. . . . 
Under these impressions, and with these views, was 
the late convention appointed; and under these im¬ 
pressions, and with these views, the late convention 
met. We now see the great end which they proposed 
to accomplish. It was to frame, for the consideration 
of their constituents, one federal and national Consti¬ 
tution ... a constitution that would insure peace, 
freedom, and happiness to the states and people of 
America." (2 Ell. Deh. 429, et seq.) 

So spoke the great Wilson, beginning his explana¬ 
tion of the proposed Constitution to the first Amer¬ 
icans assembled in the “conventions" named in the 
Seventh and Fifth Articles, the Americans in Penn¬ 
sylvania. As we listen to him, we remark the insis- 

180 


“Conventions” Are “the People” i8i 

tence upon the fact that the Constitution to be con¬ 
sidered is both a ^^federal and national Constitution.” 
And, In strict conformity to this fact, Wilson is heard 
explaining the difference between the federal liberty 
of a state, controlled by the federal Articles of a con¬ 
stitution, and the natural liberty of a man, controlled 
by the national Articles of a constitution. We listen 
to him with great Interest when he tells us that this 
federal and national Constitution has been framed to 
insure “peace, freedom and happiness to the states and 
the people of America.” In his words we hear the 
echo of the fact so clearly declared In the Tenth 
Amendment, that the federal powers, not delegated 
in this Constitution to the new government, are re¬ 
served “to the states respectively,” and the national 
powers, not therein delegated, are reserved “to the 
people” themselves of America. 

And, remembering that the two distinct reservees 
of the Tenth Amendment are respectively named in 
the Fifth Article, we keep in mind that the new Con¬ 
stitution Is both “a federal and a national Constitu¬ 
tion.” From which we know, as Wilson knew, that 
these reservees are named In the Fifth Article, the 
“state legislatures” because of their limited ability to 
make federal or declaratory Articles, and the “con¬ 
ventions” because of their ability to make Articles of 
every kind, the “conventions” of the Fifth and Sev¬ 
enth Articles being the people themselves. As we 
are actually sitting with Wilson In one of the “con¬ 
ventions” of the Seventh Article, there Is no possi¬ 
bility of our forgetting, as none of the people in any 
of those conventions ever forgot, that the “conven¬ 
tions” of the Seventh Article are exactly the same as 
the “conventions” of the Fifth Article and that both 


182 Citizen or Subject? 

are the people of America, assembled in their “con¬ 
ventions.” 

None of the Americans in those conventions could 
be guilty of the ridiculous modern blunder about the 
Fifth Article. None could possibly read that Article 
to mean that the American citizens, “assembled in con¬ 
ventions,” were granting to the American citizens, 
“assembled in conventions,” any ability whatever to 
make Articles. The modern blunder becomes clear 
to us. Although the Seventh and Fifth Articles have 
only been proposed and have not yet been made, we 
sit in one of those “conventions” about to exercise 
ability to say “Yes” to any Article, whether federal 
or national. So, with amazement at the blunder of 
1917 and 1920 about the Fifth Article, we listen in¬ 
tently to the Wilson statement which brings home 
the absurdity of the idea that the Article is a grant of 
ability to make Articles. 

As in all those conventions, he is meeting the usual 
charge that the new Constitution endangers individual 
liberty because it lacks a bill of rights. As in all the 
conventions, he is pointing out that no bill of rights 
is needed in a Constitution which gives to government 
no power to interfere with individual freedom, except 
the specific and enumerated powers of the First Arti¬ 
cle. He is repudiating the thought that anywhere in 
the Constitution, in its Fifth Article or elsewhere, 
outside of the First Article, is there any grant to any 
government of power to interfere with individual lib¬ 
erty. And this is what he has to say about the Phila¬ 
delphia Convention, which ended in the preceding 
September, and about the constitutional Articles that 
Convention proposed, including the Fifth Article. “A 
proposition to adopt a measure that would have sup- 


“Conventions” Are “the People” 183 

posed that we were throwing into the general govern¬ 
ment every power not expressly reserved by the peo¬ 
ple, would have been spurned, in that House, with the 
greatest indignation.” (2 Ell. Deb. 436.) 

We Americans, who will listen later herein to some 
extraordinary ideas about the Fifth Article from our 
modern “constitutional” thinkers, wonder just exactly 
with how much indignation the Fifth Article would 
have been spurned in all the conventions of that earlier 
day, if Patrick Henry or any other great opponent of 
the proposed Constitution had only been able to point 
out that the Fifth Article was a “grant” to a general 
government (the legislative governments of some of 
the states) not only of every power “expressly re¬ 
served by the people” but also of every power given 
to Congress by the First Article. We also wonder 
whether the indignation would have been increased 
or entirely dissipated if Henry or some other opponent 
had informed those conventions, the assembled people 
of America, a people so jealous of all government 
interference, that the omnipotence was granted so that 
the state legislatures, never elected by the American 
citizens at all, might, without the slightest restraint 
or any constitutional restriction, interfere with every 
individual right of the American citizen. 

While many apparently sane and reasonable mod¬ 
ern inhabitants of America have listened to such ideas 
in the last five years as if those who advanced the ideas 
were talking or thinking intelligently, we rather be¬ 
lieve that the Americans in those early conventions, 
even from Henry, would not have received such ideas 
complacently. However, as we have found in those 
early Americans much of the natural humor which is 
the characteristic of a human being who thinks for 


184 


Citizen or Subject? 


himself, we are Inclined to believe that the modern 
ideas in relation to the Fifth Article, about which 
ideas we have just been talking, would not have been 
received in any of those conventions with indignation 
but would have been greeted with prolonged laughter. 

But the Henry of those days had not the intellectual 
calibre of oiir “constitutional” thinkers. Therefore, 
in those conventions, not even from one of the many 
bitter opponents of the proposed Constitution, do we 
hear any suggestion that there lurks somewhere in the 
Fifth Article, between its lines, because not hinted at 
in its apt, precise and classic English, the extraordinary 
grant of omnipotence to the legislative governments 
of some of the states. On the contrary, in every con¬ 
vention, we find the new Constitution bitterly assailed 
because its provisions reduce the state governments to 
that pitiable condition where Henry calls them the 
weakened, enervated and defenseless state govern¬ 
ments. Indeed, we are inclined to mirth when we 
contrast these modern ideas of the Fifth Article (that 
it grants omnipotence over individual rights to some 
state governments) with many of Henry’s word pic¬ 
tures of the effect of the proposed Constitution on 
those state governments. 

This is one of those pictures which he exhibits to 
the Americans in Virginia, assembled in their conven¬ 
tions: “What shall the states have to do? Take care 
of the poor, repair and make highways, erect bridges, 
and so on, and so on? Abolish the state legislatures 
at once. What purposes should they be continued for? 
Our legislature will be indeed a ludicrous spectacle— 
one hundred and eighty men marching in solemn, far¬ 
cical procession, exhibiting a mournful proof of the 
lost liberty of their country, without the power of re^ 


“Conventions” Are “the People” 


185 


storing it. But, sir, we have the consolation that it is 
a mixed government; that is, it may work sorely on 
your neck, but you have some comfort by saying, that 
it was a federal government in its origin.” (3 Ell. 
Deb. 171.) 

Clearly, neither Henry nor the other opponents of 
the new Constitution had the modern ability to discern 
that it only appeared to deprive the state governments 
of much of their former powers. They could not see, 
they did not know, that its Fifth Article granted those 
state governments the omnipotence over individual lib¬ 
erty which the Statute of ’76 had denied to the British 
Parliament. And because Henry and his colleagues 
had not the discernment of our leaders, we hear Wil¬ 
son and the supporters of the Constitution defending 
it against the plain fact that it did rob the state gov¬ 
ernments of much of their former power. For exam¬ 
ple, we hear Wilson saying: “The secret is now dis¬ 
closed, and it is discovered to be a dread, that the 
boasted state sovereignties will, under this system, be 
disrobed of part of their power. ... I know very 
well, sir, that the people have hitherto been shut out 
of the federal government; but it is not meant that 
they should any longer be dispossessed of their rights. 
In order to recognize this leading principle, the pro¬ 
posed system sets out with a declaration that its exis¬ 
tence depends upon the supreme authority of the peo¬ 
ple alone. . . . When the principle is once settled 
that the people are the source of authority, the conse¬ 
quence is, that they may take from the subordinate 
governments powers with which they have hitherto 
trusted them, and place those powers in the general 
government, if it is thought that there they will be 
productive of more good. They can distribute one 


i86 


Citizen or Subject? 


portion of power to the more contracted circle, called 
state governments; they can also furnish another pro¬ 
portion to the government of the United States. Who 
will undertake to say, as a state officer, that the people 
may not give to the general government what powers, 
and for what purposes, they please? How comes it, 
sir, that these state governments dictate to their supe¬ 
riors—to the majesty of the people? ... I have no 
idea that a safe system of power in the government, 
sufficient to manage the general interest of the United 
States, could be drawn from any other source, or 
vested in any other authority, than that of the people 
at large; and I consider this authority as the rock on 
which this structure will stand. If this principle is 
unfounded, the system must fall. . . . With how 
much contempt have we seen the authority of the 
people treated by the legislature of this state!” (2 
Ell. Deh. 443, et seq.) 

But we cannot stay much longer in the Pennsylvania 
Convention. It would be unwise, however, for us to 
depart therefrom without hearing the accurate con¬ 
firmation of our own reading and understanding of 
the Fifth Article from its own “apt, precise and classic 
English.” Wilson was explaining his opposition to the 
doctrine that a constitution is a compact between a 
master government and servant people. In other 
words, he was explaining the American Statute of ’76, 
stating the legal principle that Americans are not “sub¬ 
jects.” “The citizens of united America, I presume, 
do not wish to stand on that footing with those to 
whom, from convenience, they please to delegate the 
exercise of the general powers necessary for sustain¬ 
ing and preserving the Union. They wish a principle 
established, by the operation of which the legislatures 


“Conventions” Are “the People” 


187 


may feel the direct authority of the people. The 
people, possessing that authority, will continue to exer¬ 
cise it by amending and improving their own work.” 
(2 Ell. Deb. 498.) 

To us average Americans this seems like sound 
American law and in strict keeping with our reading 
of the plain language of the Fifth Article, as we read 
it with the Americans in those old conventions. Wilson 
and his associates seem to know with certainty that 
the Fifth Article is not to change all the free indi¬ 
vidual Americans into “subjects” of the legislative 
governments of which he speaks. Indeed, he calls all 
those free Americans, to some of whom he was speak¬ 
ing, “the citizens of America,” although the nation of 
America would not exist and they would not be its 
citizens until they and the Americans, in eight other 
conventions, had said “Yes” to the Constitution they 
were discussing. Therefore, when he speaks of that 
Constitution as establishing a principle “by the opera¬ 
tion of which the legislatures may feel the direct au¬ 
thority of the people” or “citizens of America,” and 
immediately adds that those citizens, possessing the 
exclusive authority to exercise and vest ability to inter¬ 
fere with individual freedom, “will continue to exer¬ 
cise it by amending and improving their own work,” 
the enumerated grants of such authority in the First 
Article, we realize with certainty that he and his asso¬ 
ciates know that the Fifth Article in that Constitution 
does not mean that the legislatures (who are to feel 
the direct authority of the people) can thereafter exer¬ 
cise the authority of the citizens of America by alter¬ 
ing, subtracting from or adding to the First Article 
quanturri of delegated power to interfere with the 
individual freedom of the American people. 


188 Citizen or Subject? 

In this convention, where the Americans In Penn¬ 
sylvania are assembled, we have heard the consistent 
emphasis laid upon the fact that the Constitution is 
both a federal and a national Constitution, the distinc¬ 
tion from all other constitutions so clearly recognized 
by the Fifth Article mention of the two makers of 
Articles. Later herein we will learn how this distinc¬ 
tive quality of our Constitution, this distinction recog¬ 
nized In Its Fifth Article as well as In Its Tenth Amend¬ 
ment, has neither been felt or acknowledged but has 
been wholly ignored by our modern “constitutional” 
thinkers for five years last past. At this point, there¬ 
fore, It Is well that we sit for a moment In the Virginia 
convention and listen to Henry, the greatest and most 
determined opponent of the Constitution before it was 
adopted. With our minds fixed upon the language 
of the Fifth Article and its clear mention of the exclu¬ 
sive existing ability of “conventions” to make national 
Articles, a mention emphasized by the equally clear 
recognition of the limited ability of the legislative 
state governments to make Articles which are not 
national. It Is Interesting to hear Henry refer to the 
difference between federal and national Articles; and 
it Is more than interesting, it Is amazingly important 
to hear him proving, by the fact that the Americans in 
Virginia are assembled In one of the “conventions,” 
that the Articles which have been just proposed from 
Philadelphia, are national and, therefore, of the kind 
that legislative governments can never make. 

It Is Thursday, June 5, 1788, the day on which 
began the Immortal Virginia debate. For a year, since 
the proposal from Philadelphia, the new Articles have 
been the subject of the severest scrutiny on the part 
of those determined to secure the rejection of those 


“Conventions” Are “the People” 


189 


Articles by the American people in Virginia. Through¬ 
out all America, these Articles have been examined 
and assailed and condemned in public writing and 
speech by those equally determined to secure their 
rejection by the Americans assembled in the other 
“conventions.” On the other hand, the same Articles 
have been explained and their necessity, if American 
individual liberty is to be secure, has been demon¬ 
strated in the famous essays which we now know as 
The Federalist, nearly all of which essays were the 
work of Madison and Hamilton, who are responsible 
for the wording and the meaning of the Fifth Article. 
Like the other “conventions,” assembling when all 
minds sought the best protection for individual liberty 
against oppressive governments, the members of the 
Virginia convention have been carefully chosen to 
speak the will of the Americans in Virginia by a 
simple “Yes” or “No” to these seven Articles, the 
first of which constitutes government ability to inter¬ 
fere with individual liberty. 

Could anything be more vitally Important to indi¬ 
vidual liberty than that just such “conventions,” so 
chosen, not the state legislatures, each elected by the 
citizens of Its own state for an entirely different pur- 
pose, should continue to have their exclusive ability to 
determine how much power to Interfere with Individ¬ 
ual freedom shall be surrendered by the American peo¬ 
ple, and how the quantum (which is surrendered) shall 
be apportioned for exercise between the one American 
government and the respective states and their respec¬ 
tive legislative governments? Later herein we shall 
learn how clearly Madison and Hamilton, responsible 
for the wording and meaning of the Fifth Article, 
knew and appreciated the practical and amazing Im- 


190 


Citizen or Subject? 


portance as security to individual liberty, in this dis¬ 
tinction between the two makers (“conventions” of the 
American people themselves and state “legislatures”) 
named In their Fifth Article and in the distinction be¬ 
tween their respective and existing abilities to make 
Articles In a Constitution which Is both a federal and 
national Constitution. And, as we know, as the Su¬ 
preme Court has declared In the voice of the Marshall 
who sits with us in that Virginia convention, the knowl¬ 
edge and appreciation was not peculiar to Madison 
and Hamilton. It was the common knowledge and 
appreciation of all the Americans who made the Fifth 
Article in those conventions. “To the formation of a 
league, such as was the Confederation, the state sov¬ 
ereignties were certainly competent”; but when a grant 
of enumerated power to interfere with Individual free¬ 
dom was asked, “the legal necessity of referring It to 
the people and of deriving Its powers directly from 
them was felt and acknowledged by all.” When such 
a grant Is asked, whether It be asked In the shape of 
the First Article or of the Eighteenth Amendment, It 
Is not referred to the people at all, unless it Is sent 
to them to be considered and discussed before they 
choose, from among themselves, those of themselves 
who will assemble In the “conventions” for the one 
and sole purpose of uttering the carefully weighed 
“Yes” or “No” of the Americans In the state where 
the particular convention assembles. As all In those 
early conventions knew, as Marshall declared from 
the Supreme Court, that assembling In those “conven¬ 
tions” is the only way in which the American people 
can act “safely, effectively and wisely” when asked for 
a grant of power to Interfere with Individual freedom, 
and, as the Statute of ’76 and good sense and practical 


“Conventions” Are “the People” 19i 

experience alike teach all free men, that Is the only 
way In which any just power of government can be 
derived “directly” from the citizens upon whom it is 
to be exercised. 

We commend a careful thought of this distinction, 
vital and important to Individual human liberty, to the 
constitutional thinkers of 1917 and 1920. Whenever 
they read a Fifth Article which Included the words 
“or In conventions in three fourths thereof,” they have 
assumed that two makers of Articles were named In 
the amending procedure of the Constitution (which 
Is both federal and national) In order that Congress, 
when it wanted new power to Interfere with Individual 
freedom, might weigh the chance of getting It from 
each maker and then ask It either from those who 
reserved It exclusively to themselves, the “people” of 
the Tenth Amendment, or from those who never had 
It or the ability to grant It, the other reservee of the 
Tenth Amendment, “the states respectively” and their 
governments. Or perhaps it was the concept of these 
modern constitutional thinkers that the Fifth Article 
mentions two makers of Articles merely that Congress 
may choose either, according to Its whim, as a for¬ 
tunate golfer chooses between his two golf suits. That 
Is their idea of the security to human Individual liberty 
against government usurpation which Madison and 
Flamllton and the American people established about 
eleven years after they declared that no just power 
to Interfere with human freedom could ever be ob¬ 
tained, except from the citizens with whose Individual 
liberty the exercise of the power was to Interfere! 

As Flenry and his fellow Americans in the Virginia 
convention had no such absurd concept, we return to 
hear him charge that the Philadelphia Convention had 


192 


Citizen or Subject? 


exceeded Its authority in proposing the Constitution 
of national government and to prove that the proposed 
Constitution was national by the fact that the Amer¬ 
icans In Virginia are assembled in “convention” to say 
“Yes” or “No” to that Constitution, whereas, if it 
had consisted only of federal Articles, it would have 
been sent to the legislatures. 

“The distinction between a national government and 
a confederacy Is not sufficiently discerned. Had the 
delegates, who were sent to Philadelphia, a power to 
propose a consolidated government Instead of a con¬ 
federacy? Were they not deputed by states, and not 
by the people? The assent of the people, in their col¬ 
lective capacity, is not necessary to the formation of 
a federal government. . . . They are not the proper 
agents for this purpose. States and foreign powers 
are the only proper agents for this kind of govern¬ 
ment. Show me an Instance where the people have 
exercised this business. Has it not always gone 
through the legislatures? . . . Are the people, there¬ 
fore, in their aggregate capacity, the proper persons 
to form a confederacy? This, therefore, ought to 
depend on the consent of the legislatures, the people 
having never sent delegates to make any proposition 
for changing the government.” (3 Ell. Deb. 52.) 

In these words, as always In the convention where 
we sit and listen to him, Henry attests the universal 
knowledge, common to advocate and opponent of the 
proposed Constitution, that the Constitution has not 
been referred to the state governments because of their 
absolute inability to constitute government of Individ¬ 
uals, to give to government any power to Interfere 
with Individual liberty. In this, he and the others but 
echo the knowledge of the Americans at Concord, on 


“Conventions” Are “the People” 


193 


that October day, eleven years earlier, where they 
returned a proposed Constitution with Articles of that 
kind to the legislature which had proposed it. We 
recall their own statements that even a supreme legis¬ 
lative government “either in their proper capacity or 
in joint committee, are by no means a body proper to 
form and establish a Constitution.” We recall their 
statements of the important knowledge that “a Con¬ 
stitution, alterable” even “by the supreme legislative, 
is no security at all against the encroachment of the 
governing part on any or on all their rights and privi¬ 
leges.” But we also hear, in these words of Henry, 
his knowledge—the knowledge of all Americans at 
that time—of something else interesting and important 
to us. We hear him twice identify the assembling of 
the American people, in the “conventions” named in 
the Seventh and the Fifth Articles, as the people “in 
their collective capacity” and the people “in their ag¬ 
gregate capacity.” As we hear him, and as we hear 
Wilson in the Pennsylvania convention stating that 
“in this Constitution the citizens of America appear 
dispensing a portion of their power,” as we hear sim¬ 
ilar statements in all those “conventions,” we sense 
the universal knowledge of all those conventions that 
they are the American people, the citizens of the new 
republic. And later herein, with our education of 1790 
completed by sitting in these very conventions, we in¬ 
tend to listen (with amazement and without the slight¬ 
est belief) to the remarkable statements of 1917 and 
1920, that the states, political entities, made our Con¬ 
stitution or that the citizens of the different states, in 
their capacity as such citizens, gave to the American 
government the enumerated First Article powers to 
interfere with the individual liberty of the citizens of 


194 


Citizen or Subject? 


that entirely different and greater nation, America. 
Impressed by Henry’s knowledge that the conventions 
which made the Constitution were the people of Amer¬ 
ica, “in their collective capacity,” “in their aggregate 
capacity,” and Impressed with Wilson’s knowledge that 
“the citizens of America”—not the states or the citi¬ 
zens of the states —“are seen dispensing a portion of 
their power,” we are going to laugh at the concepts 
of 1917 and 1920 and know that Marshall was right 
when he said, speaking of the American people and 
their assembling in those “conventions”: “It is true, 
they assembled in their several states, and where else 
could they have assembled? . . . When they act, 
they act in their states. But the measures they adopt 
do not, on that account, cease to be the measures of 
the people themselves or become the measures of the 
state governments,** 

Yet, when we later come to the modern days of 
1917 and 1920, we shall see all oiir leaders, v/hether 
for or against the Eighteenth Amendment, blandly 
assume a most extraordinary meaning from the Fifth 
Article mention of the state legislatures. Not a single 
member of any state legislature is elected by the citi¬ 
zens of America. Moreover, the Tenth Amendment 
expressly declares that the Constitution—that great 
power of attorney from American citizens to their only 
American government—gives no power whatever to 
the states or their governments. Nevertheless, with 
amusement and absolute incredulity, we shall hear 
every statesman of 1917 and every lawyer of 1920 
assume and act and argue upon the extraordinary con¬ 
cept that the Fifth Article of that Constitution is a 
great power of attorney to the state legislatures as 
attorneys in fact for the American citizens. 


“Conventions” Are “the People” 


195 


“We all know the severe scrutiny to which the Con¬ 
stitution was exposed—some from their own knowl¬ 
edge, others from different sources. We know with 
what jealousy, with what watchfulness, with what 
scrupulous care its minutest provisions were examined, 
discussed, resisted, and supported by those who op¬ 
posed and those who advocated its ratification.” (4 
EIL Deb. 486.) So spoke Martin Van Buren in the 
Senate on April 7, 1826. We sit in the conventions 
which made the Constitution of which he spoke. We 
listen to every word that is said therein. We hear 
the Fifth Article explained by its worder, Madison, as 
nothing but a mode of procedure. From not one of 
the opponents of the Constitution, not even from 
Henry, do we hear a single word of attack upon the 
Fifth Article except as to the weakness of the mode 
of procedure which it provides for evoking the power 
of the “people” themselves, assembled in “conven¬ 
tions” of the very same kind, to withdraw from the 
one American legislature, the Congress, some enumer¬ 
ated power of the First Article which is found oppres¬ 
sive to individual liberty. On the contrary, we not 
only hear no single word of complaint that the Fifth 
Article or any Article gives one iota of power to the 
state legislatures, but the whole complaint of all the 
opponents of the Constitution which we do hear is that 
it practically destroys all existing ability and power 
of those state governments. Only a moment ago we 
have heard Henry ask: “If you adopt this Constitu¬ 
tion, why continue the state legislatures at all?” 

Anticipating the extraordinary concept which we are 
later to hear in 1917 and 1920, that the citizens of 
America by the Fifth Article made a collection of the 
state legislatures an omnipotent government over 


196 Citizen or Subject? 

everything in America, including every individual right, 
we wonder if the constitutional thinkers of 1917 and 
1920 remember that we are sitting with a people who, 
just five years before the conventions in which they 
and we sit, ended an eight-year war to make certain 
that there never again should be a government of that 
kind in America, to make certain that they themselves 
should never be the “subjects” of any government or 
the citizens of any nation whose government should 
have even one power to interfere with individual lib¬ 
erty, except power of that kind granted directly by its 
citizens themselves. 

It was Maclaine in the North Carolina convention 
who first used the exact expression that the Americans, 
who sit in the conventions where we are, were a people 
“better acquainted with the science of government 
than any other people in the world.” In the same con¬ 
vention, on July 29, 1788, this is what he had to say 
about the consistent attack upon the Constitution, be¬ 
cause it robbed the state legislative governments of 
so much of their previous power. “Mr. Chairman, 
that it will destroy the state sovereignty is a very 
popular argument . . . Government is formed for 
the happiness and prosperity of the people at large. 
The powers given it are for their own good. . . . 
The powers to be given the general government are 
proposed to be withdrawn from the authority of the 
state governments, in order to protect and secure the 
union at large. This proposal is made to the people. 
No man will deny their authority to delegate powers 
and recall them, in all free countries. ... It may be 
justly said that it [the Constitution which contains the 
Fifth Article] diminishes the power of the state legis¬ 
latures, and the diminution is necessary to the safety 


“Conventions” Are “the People” 


197 


and prosperity of the people” (4 EIL Deb. 180.) It 
certainly would have surprised Maclaine, as well as all 
the Americans in those conventions, to have heard any 
one of themselves stating that the same Constitution 
vested the state governments with an omnipotence they 
had never possessed, the very omnipotence denied to 
the British Parliament eleven years earlier. 

In the Virginia convention we hear Madison, who 
drafted and suggested the Fifth Article at Philadel¬ 
phia, speak of the important distinction between the 
makers of the federal Articles of 1781, only seven 
years made, when we sit in that Virginia convention, 
and the “convention” makers of the proposed Articles 
of the new national Constitution. If these “conven¬ 
tions” make it, he says, it will be a government estab¬ 
lished, not through the intervention of the legislatures 
hilt by the people at large. He goes on to say “In this 
particular respect, the distinction between the existing 
and proposed governments is very material. The ex¬ 
isting system has been derived from the dependent 
derivative authority of the legislatures of the states; 
whereas this is derived from the superior power of the 
people. If we look at the manner in which alterations 
are to be made,” now referring directly to the Fifth 
Article, “the same idea is, in some degree, attended 
to.” Ell. Deb. 9^.) 

We feel that it will be quite difficult, when we come 
later to the constitutional thinkers of 1917 and 1920, 
for them to convince us that Madison meant his Fifth 
Article to alter “the dependent derivative authority of 
the legislatures of the state” and, whenever another 
government makes the suggestion, put that dependent 
authority above what he calls “the superior power of 
the people.” 


198 


Citizen or Subject? 


And we feel that these “constitutional thinkers” will 
find it impossible to convince us when we recall Mad¬ 
ison’s other words, directly referring to his Fifth Arti¬ 
cle and the existing power of the people, mentioned 
therein by the word “conventions.” These are the 
words to which we allude; “Were it [his Fifth Arti¬ 
cle] wholly national, the supreme and ultimate author¬ 
ity would reside in the fnajority of the people of the 
Union, and this authority would be competent at all 
times, like that of a majority of every national society, 
to alter or abolish its established government.” It is 
Madison himself who puts the one word “majority” 
in italics. He does so to call attention to the fact 
that his Article leaves “the supreme and ultimate au¬ 
thority” in the people (named as “conventions” in his 
Article) but not necessarily capable of exercise by the 
majority in any constitutional manner. He goes on to 
explain this very fact by saying that when the mode 
of procedure prescribed in his Article is read, it is 
found that “in requiring more than a majority, and 
particularly in computing the proportion by states, not 
by citizens, it departs from the national and advances 
towards the federal character.” {Fed. No. 39.) 

In New York we find Hamilton, who seconded the 
suggestion of Madison’s Fifth Article at Philadel¬ 
phia, almost immediately after he had stated that there 
would be no danger in permitting Congress to propose 
amendments since “the final decision in the case will 
rest with the people.” As we recall, Flamilton said 
this when the tentative Fifth Article mentioned no one 
but the people, “conventions,” as the maker of future 
Articles, because he and Madison and their associates 
at Philadelphia, whose minds had so far been concen¬ 
trated upon the national First Article, had not yet 


“Conventions” Are “tele People” 


199 


grasped the fact, later stated by Hamilton to be his 
conviction, that all future changes would probably re¬ 
late “to the organization of government and not to the 
mass of its powers/^ We are, therefore, interested to 
find Hamilton, in New York, on Friday, December 14, 
1787, pointing out that “It has not a little contributed 
to the infirmities of the existing federal system that it 
never had a ratification by the PEOPLE. Resting on no 
better foundation than the consent of the several legis¬ 
latures, it has been exposed to frequent and intricate 
questions concerning the validity of its powers. . . . 
The possibility of a question of this nature proves the 
necessity of laying the foundations of our national gov¬ 
ernment [the First Article grant of national powers] 
deeper than in the mere sanction of delegated author¬ 
ity [referring directly to the state legislatures which 
are mentioned in the Fifth Article]. The fabric of 
American empire ought to rest on the solid basis OF 
THE CONSENT OF THE PEOPLE. The streams of na¬ 
tional power ought to flow immediately from that 
pure, original fountain of all legitimate authority.” 
{Fed. No. 22.) The capitals are those of Hamilton 
himself. We rather feel that his stress upon the “peo¬ 
ple,” sharply contrasted with the state “legislatures,” 
as the only legitimate direct source of national power, 
such as is granted in the First Article and the Eigh¬ 
teenth Amendment, will be somewhat of a shock to the 
“constitutional thinkers” of 1917 and 1920. Sitting 
in the conventions of old, we rather recognize the 
capitalized words, where Hamilton says that national 
power in America “ought to rest on the solid basis of 
the CONSENT OF THE PEOPLE,” as a direct echo from 
the Statute of ’76, enacted only eleven years before 
those conventions. That Statute says that every just 


200 Citizen or Subject? 

power of government must be derived directly from 
the governed. 

And we become rather convinced that Hamilton and 
Madison, when submitting the Fifth Article at Phila¬ 
delphia, never worded it so that national power in 
America could be granted through the illegitimate au¬ 
thority of the state legislatures, when we read what 
either one or both of them have to say on Tuesday, 
February 5, 1788, in The Federalist^ No. 49. “As 
the people are the only legitimate fountain of power, 
and it is from them that the constitutional charter, 
under which the several branches of government hold 
their power, is derived, it seems strictly consonant to 
the republican theory to recur to the same original 
authority”—a direct reference to the “conventions” 
of the Seventh and the Fifth Articles—“whenever it 
may be necessary to enlarge, diminish, or new-model 
the powers of government.” 

If we ever had any doubt as to what Hamilton 
meant the Fifth Article to provide, our doubt is ended 
forever when we hear Hamilton, in the New York 
Convention, speak of the state legislatures, which the 
“constitutional thinkers” of 1917 and 1920 assume to 
have been made attorney in fact for the American 
people for every purpose by that Fifth Article. “Look 
through their history,” he says, speaking of those state 
legislative governments. “What factions have arisen 
from the most trifling causes! What intrigues have 
been practiced for the most illiberal purposes 1 Is not 
the State of Rhode Island, at this moment, struggling 
under difficulties and distresses, for having been led 
blindly by the spirit of the multitude? What is her 
legislature but the picture of a mohf^ Most of the 
states “are either governed by a single democratic as- 


“Conventions’’ Are “the People” 201 

sembly, or have a senate constituted entirely upon 
democratic principles. These have been more or less 
embroiled in factions, and have generally been the 
image and echo of the multitude. . . . Let us beware 
that we do not make the state legislatures a vehicle in 
which the evil humors may be conveyed into the na¬ 
tional system/* (2 EIL Deb, 317.) When Hamilton 
knew that these state legislatures were not the legiti¬ 
mate source of national powers in a republic and when 
he had this view of their general character, will any 
sane man believe that he advocated that the citizens 
of America should make these legislatures (although 
the citizens of America elect not a single member in 
them) absolute attorney in fact for the citizens of 
America for all purposes? Will any sane man believe 
that he proposed to substitute them, as grantors of 
national power, for the “conventions” of the Fifth 
Article, which “conventions” already excited the ad¬ 
miration of the entire world, according to the author 
of the Fifth Article, as the only safe or effective mode 
in which the free citizens of a nation could vest its 
government with any power to interfere with their 
own individual liberty. 

“The authority of Constitutions over governments, 
and the sovereignty of the people over Constitutions, 
are truths which are at all times necessary to be kept 
in mind; and at no time, perhapsy more necessary than 
at present/* This impressive statement of the truth 
that the “governments,” state “legislatures,” never 
were placed by the Fifth Article above the Constitu¬ 
tion in which it is, and above the sovereignty of the 
people, mentioned therein as “conventions,” and can¬ 
not be placed there by another government, the Con¬ 
gress, is not a statement made in the heat of the con- 


202 Citizen or Subject? 

troversy about the Eighteenth Amendment. It is the 
statement of James Madison, author of the Fifth 
Article, made in the Virginia House of Delegates in 

It is becoming almost impossible for us, as we sit 
in these conventions and hear every word that is said, 
to understand the source of the modern thought, if we 
can dignify it by calling it “thought,” that the Fifth 
Article is a power of attorney from the citizens of 
America to the state governments, every member of 
which is elected by the citizens of the respective states 
and not by the citizens of America. It is beginning to 
grow upon us that any such “thought” is based on 
sheer assumption and that the entire record of the 
“conventions” is a closed book to those who hold the 
assumption. We know that they have the explicit 
statement of the Tenth Amendment, that the Constitu¬ 
tion gives no power of any kind to any donee except the 
one new American government, the government with 
the enumerated powers of the First Article. As no 
power of attorney was ever written or can be conceived 
except one which grants the attorney in fact some 
power, the Tenth Amendment makes absolutely certain 
that neither the Fifth Article nor the entire Constitu¬ 
tion gives to the state legislatures any power as attor¬ 
neys in fact for the citizens of America. 

Moreover, breathing the atmosphere of those first 
“conventions” of the kind named in the Seventh and 
the Fifth Articles, the “conventions” where individual 
liberty of the American is the only object of advocate 
and opponent of the Articles under consideration, we 
begin to sense that the holders of the impossible as¬ 
sumption have never fully grasped the amazing and 
vital distinction between “state legislatures” and “con- 


“Conventions” Are “the People” 203 

ventions” of the kind named in the Seventh and the 
Fifth Articles. When we shall hear the “constitutional 
thinkers” of 1917 and 1920 speak of the “legislatures” 
and the “conventions” as two different agents given 
omnipotent attorneyship in fact over all the individual 
rights of the citizens of America, we shall wonder if 
these thinkers appreciate that the “state legislatures” 
are permanent bodies, always existing, and that the 
“conventions” of the Fifth Article are, to the “conven¬ 
tions” in which we sit, bodies that never would have 
an existence until some future moment, when the 
American citizens themselves would again be called to 
assemble in and thus make those “conventions.” Noth¬ 
ing could show more clearly that the “conventions” of 
the Seventh Article looked upon the “conventions” of 
the Fifth Article, not as the donee of any power of 
attorney, but as themselves or their posterity, the 
citizens of America, assembling again to determine 
whether there shall be any change in the distribution 
of power to interfere with their individual liberty. 
And our thought, re-echoed again and again by Mar¬ 
shall and others from the Bench of the Supreme Court 
in the century that follows the first assembling of these 
“conventions,” seems but the repetition of what we 
hear said in the Massachusetts Convention as the 
tribute of its Americans to the Fifth Article. 

On January 23, 1788, the Americans, assembled In 
Massachusetts, took up the consideration of that Ar¬ 
ticle. As in every convention, there had been great 
opposition to the earlier Articles; as in every conven¬ 
tion, nearly all of it had been to the great national 
powers of the First Article granted to the new govern¬ 
ment and taken from the state governments; and, as 
in every convention, almost all of this opposition had 


204 


Citizen or Subject? 


been the continued complaint that the state govern¬ 
ments were being destroyed. 

It was not that the Americans loved the state gov¬ 
ernments. The truth is that, like every natural human 
being, they objected to all governments. Their sole 
thought was fear of oppressive government infringe¬ 
ment upon their individual liberty. In this respect, the 
Americans in each convention feared their own legis¬ 
lative government less than the new proposed Con¬ 
gress, because they would elect all the members of the 
former and only a few members of the latter. If it 
had been suggested, by any of the many opponents of 
the new Constitution, that any possible twisting of the 
words of the Fifth Article meant that governments 
outside their state, not one of whose members they 
themselves would elect, could infringe upon their every 
individual right, without any constitutional restraint, 
the record of every convention would have been one 
unanimous “no,” against the new Constitution. But, 
as no “constitutional thinker” of 1917 or 1920 sat in 
any of those conventions, no such suggestion was ever 
made therein. 

And so, on that January 23, we hear the Fifth 
Article read in that Massachusetts convention, and we 
see Rufus King rising and we hear him state that “He 
believed gentlemen had not, in their objections to the 
Constitution, recollected that this Article was a part 
of it; for many of the arguments of gentlemen were 
founded on the idea of future amendments being im¬ 
practicable.” He dwelt “on the superior excellence of 
the proposed Constitution in this particular, and called 
upon gentlemen to produce an instance, in any other 
national constitution, where the people had so fair an 
opportunity to correct any abuse which might take 


“Conventions” Are “the People” 205 

place in the future administration of the government 
under it.” 

And then we hear Dr. Jarvis: “Mr. President, I 
cannot suffer the present Article to be passed, without 
rising to express my entire and perfect approbation of 
it. Whatever may have been my private opinion of 
any other part, or whatever faults or imperfections 
I have remarked, or fancied I have seen, in any other 
instance, here, sir, I have found complete satisfaction: 
this has been a resting place, on which I have reposed 
myself in the fullest security, whenever a doubt has 
occurred, in considering any other passage in the pro¬ 
posed Constitution. The honorable gentleman last 
speaking has called upon those persons who are op¬ 
posed to our receiving the present system, to show 
another government, in which such a wise precaution 
has been taken to secure to the people the right of mak¬ 
ing such alterations and amendments, in a peaceable 
way, as experience shall have proved to be necessary. 
Allow me to say, sir, as far as the narrow limits of 
my own information extend, I know of no such ex¬ 
ample. In other countries, sir,—unhappily for man¬ 
kind,—the history of their respective revolutions has 
been written in blood; and it is in this only that any 
great or important change in our political situation has 
been effected, without public commotions. When we 
shall have adopted the Constitution before us, we shall 
have in this Article an adequate provision for all the 
purposes of political reformation. If, in the course of 
its operation, this government shall appear to be too 
severe, here are the means by which this severity may 
.be assuaged and corrected. . . . JVe have united 
against the British; we have united in calling the late 
federal convention; and we may certainly unite again 


2 o6 


Citizen or Subject? 


in such alterations as in reason shall appear to be Im¬ 
portant for the peace and happiness of America.” (2 
Ell. Deb. 116.) 

No man ever voiced such sentiments, no conventions 
of Americans ever listened to them, with any knowl¬ 
edge or thought that the Fifth Article, “the wise pre¬ 
caution” to secure the liberty of the individual if the 
government with the national powers of the First Ar¬ 
ticle oppressed that liberty, was Itself a grant to 
another government, ten legislatures outside of the 
Massachusetts in which that convention was held, to 
Infringe upon the individual liberty of every American 
in Massachusetts on every subject without any con¬ 
stitutional restraint. 

I And so, we average Americans end our education in 
the only “conventions,” named in the Seventh or the 
Fifth Articles, which yet have assembled. And we end 
that education knowing that there is nothing anywhere 
in the Constitution those conventions adopted, and 
especially nothing in the Fifth Article, which changed 
the free American Into a subject of any government or 
governments in America. Everything we have heard 
—and what we have repeated is but little of what we 
have heard—serves but to emphasize the only meaning 
of Its “apt, precise and classic English,” the plain 
meaning which we got from Its language when we read 
it at the beginning of these conventions with the Ameri¬ 
cans who made it. 

It is, as Its author explained it, naught but a con¬ 
stitutional mode of procedure in which may be there¬ 
after exercised, in a constitutional manner, either the 
limited ability of state governments to make Articles 
which do not concern themselves with the Infringement 
of Individual liberty or the unlimited ability of the peo- 


“Conventions” Are “the People” 207 

pie themselves, the “conventions” of the kind In which 
we have sat, to make any Articles. The procedure pre¬ 
scribed for such constitutional exercise Is simplicity 
Itself to those who sit In those conventions. It Is ex¬ 
actly the procedure just followed (up to the point 
where the work of any proposer of a new Article and 
Its mode of ratification must end) by the Philadelphia 
Convention which drafted It and the other six Articles. 
The Philadelphia Convention found Itself without any 
CONSTITUTIONAL mode of procedure In which could be 
evoked to exercise the existing and exclusive power of 
the people of America to grant any government power 
to Infringe upon the Individual liberty of the American 
citizens. There being no constitutional mode of pro¬ 
cedure, no designated body to draft Articles with such 
grants and to propose them and to ascertain and pro¬ 
pose the valid mode of ratification for them, the Phila¬ 
delphia Convention did that work, guided only by basic 
American doctrine, the Statute of ’76 and the experi¬ 
ence of the “conventions” which had made the national 
Articles of 1776. It followed a certain mode of pro¬ 
cedure in the doing of these things, knowing and stat¬ 
ing that to draft Articles and propose them and 
ascertain and propose the right mode of ratification 
for them is not the exercise of any power. With a 
knowledge which we of a later generation never should 
have forgotten—and which we who have been edu¬ 
cated with them never will forget—the Philadelphia 
Convention knew that there were two makers of Ar¬ 
ticles in America, each of which had exercised its 
respective and different ability to make them, during 
the eleven years which preceded the Philadelphia Con¬ 
vention. They knew that every Article that was 
national could be made by no one l3ut the people them- 


2 o8 


Citizen or Subject? 


selves, the “conventions,” which had made the national 
Articles of ’76 and which are named as the makers 
of all future Articles of that kind in the Seventh and 
the Fifth Articles proposed by Philadelphia. 

And so, when the Philadelphia Convention had 
drafted its Articles and was about to propose them, it 
recognized the legal necessity of ascertaining, from the 
nature of those Articles, whether they were in the 
power of both or only of one of those existing makers 
of Articles. In the ascertainment, with their minds on 
the First Article grants of national power to interfere 
with individual liberty, they knew that no governments 
in America could make an Article of that kind. Their 
ascertainment was then ended and they knew that they 
must propose that mode of ratification which would 
send their Articles to the only valid ratifiers, the people 
themselves, the “conventions” of the Seventh and the 
Fifth Articles. 

This was the procedure they had followed, when 
there was no constitutional mode of procedure pro¬ 
vided. And so, with the extraordinary wisdom that 
characterized everything they did, that Philadelphia 
Convention wrote exactly the same procedure into the 
Fifth Article so that never again there might be lack¬ 
ing in America a constitutional mode of procedure for 
the evoking and the exercise of the only power that is 
ever exercised when constitutional Articles are made, 
the power of making them. As the Philadelphia Con¬ 
vention ended its existence with its own proposals, 
some new body had to do that work, when any new 
Article was to be proposed. As the work of the Phila¬ 
delphia Convention had not been the exercise of any 
power but merely the work of proposing, it was a 
certainty that the new constitutional mode, exactly the 


“Conventions” Are “the People” 209 

same mode as that of Philadelphia, would also be the 
exercise of no power. And so, the Philadelphia Conven¬ 
tion named the Congress (or a convention demanded 
by the state legislatures) to do the work of the Phila¬ 
delphia Convention in drafting and proposing any new 
Article, and it named the Congress to perform the 
duty of ascertaining (by the nature of the new drafted 
Article) which of the two makers could make it, and 
then to propose a mode of ratification by which it 
would be validly ratified by such competent maker. As 
to the only powers ever to be exercised in the making 
of any new Article, the power of legislatures to make 
federal Articles, and the exclusive power of the people 
or “conventions” to make national Articles, the con¬ 
stitutional mode of procedure did not (nor could it, 
if Americans were not to become “subjects”) give the 
governments any of the exclusive ability of the people 
or “conventions,” and it did not (nor could it, if 
America were to be a republic) alter the existing abil¬ 
ity of the majority of the American people to make 
their governments what they will. But, for the very 
practical purpose which Madison so clearly explained, 
the purpose of providing some check upon the 
tyranny of the majority or an aggressive minority over 
the individual rights of all Americans, the Fifth Article 
procedure could and did fail to provide any consti¬ 
tutional method in which government power to 
interfere with individual liberty, as all surrendered 
power of that kind was distributed between different 
governments in the Constitution, could be changed in 
any way or transferred from one government to an¬ 
other, unless the “conventions” of the American citi¬ 
zens in three fourths of the states said “Yes” to any 
proposed change or transfer. 


210 


Citizen or Subject? 


The Philadelphia Convention having proposed this 
particular check upon the existing ability of the people 
themselves to oppress individual liberty, a check which 
makes the words “by conventions in three fourths 
thereof” by far the most important words, the Fifth 
Article goes on to prescribe exactly the same check on 
the exercise of the ability of the state legislatures to 
make federal Articles. 

That the Fifth Article, a constitutional mode of 
procedure for the exercise of two different existing 
abilities, was not a grant of any power to the state 
legislative governments is something that was known 
to every man in the conventions which made that Fifth 
Article. 

In the Pennsylvania convention, Wilson plainly 
stated the knowledge of all that the supreme power 
^Wesides in the people, as the fountain of government; 
that the people have not—that the people meant not 
—and that the people ought not—to part with it to 
any government whatsoever. In their hands it remains 
secure. They can delegate it in such proportions to 
such bodies, on such terms, and under such limitations, 
as they think proper. I agree with the members in 
opposition, that there cannot be two sovereign powers 
on the same subject. . . . My position is, sir, that, 
in this country, the supreme, absolute, and uncon¬ 
trollable power resides in the people at large.” (2 
Ell. Deb. 456 et seq.) 

When more .than half a century had passed, the 
same thing was known to those who knew American 
Constitutional Law. 

“It is obviously impossible for the whole people to 
meet, prepare and discuss the proposed alterations, 
and there seems to be no feasible mode by which an 


‘^Conventions” Are “the People” 


211 


expression of their will can be obtained, except by 
asking it upon the single point of assent or disapproval. 
But no body of representatives, unless specially clothed 
with power for that purpose by the people when choos¬ 
ing thefn, [ergo, no permanent state governments or 
legislatures] can rightfully take definitive action upon 
amendments or revisions; they must submit the result 
of their deliberations to the people— who alone are 
COMPETENT TO EXERCISE THE POWERS OF SOVER¬ 
EIGNTY IN FRAMING THE FUNDAMENTAL LAW -for 

ratification or rejection.” 

So spoke the great Cooley in reference to making 
changes in national constitutions in his work on Con¬ 
stitutional Limitations (7th ed., 1903, at p. 61). 

When one hundred and seventeen years had passed 
since the conventions in which we just sat, the same 
thing was known in the Supreme Court, in 1907. 

The powers the people have given to the General Gov¬ 
ernment are named in the Constitution, and all not there 
named, either expressly or by implication, are reserved to 
the people and can be exercised only by them, or upon fur¬ 
ther grant from them. (Justice Brewer in Turner v. 
Williams, 194 U. S. 279.) 


CHAPTER XIV 


SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM 

TTOR my own part, I acknowledge a thorough con- 

1 / viction that Amendments which may, upon ma¬ 
ture consideration, be thought useful, will be applicable 
to the organization of the government, not to the mass 
of its powers.” {Fed, No. 85.) 

This was the statement of Hamilton to the Ameri¬ 
can people when he was asking them, about to as¬ 
semble in their conventions, to make their First Article 
grants of enumerated powers to interfere with their 
individual freedom and to make their Fifth Article 
mode of procedure, in which they could exercise 
CONSTITUTIONALLY their exclusive ability, assembled 
again in “conventions,” to add or subtract from that 
grant of enumerated powers of that kind. 

When he used the words, “mass of its powers,” he 
referred directly to that First Article grant. It con¬ 
tains all the powers that were ever given to any gov¬ 
ernment to interfere with the individual freedom of 
the American citizen. He knew what the Supreme 
Court clearly declared in United States v. Cruikshank, 
92 U, S, 542, that, beyond the scope of its enumerated 
powers, there is no government of the American citi¬ 
zens. He knew that, in the geographical territory 
which is each state, there would thereafter be two gov¬ 
ernments, the government of enumerated powers, 
governing the American citizens in that state under the 

212 


Respecting Human Freedom 213 

First Article grants from the American citizens, and 
the state governments, governing the citizens of the 
state, under whatever grants of national power its 
state citizens gave that government. 

The two governments in each state stand in their re¬ 
spective spheres of action in the same independent relation 
to each other, except in one particular, that they would 
if their authority embraced distinct territories. That par¬ 
ticular consists in the supremacy of the authority of the 
United States when any conflict arises between the two 
governments. (Justice Field, in Tarble*s case, in the Su¬ 
preme Court, 13 fValL 397.) 

With such knowledge, he would have found it im¬ 
possible to make the blunder of assuming that either 
government could give or join with governments in 
giving to the other any power to Interfere with the 
citizens of the grantee in their enjoyment of individual 
liberty. He knew that, “In our republican forms of 
government, the absolute sovereignty of the nation is 
In the people of the nation; and the residuary sover¬ 
eignty of each state, not granted to any of its public 
functionaries, Is In the people of the state.” (Story, 
I Ell. Deh. 65.) 

When Hamilton stated, in those days of 1788, his 
conviction that new Articles would relate to the “or¬ 
ganization of government and not to the mass of Its 
powers,” he was epitomizing the common knowledge 
of everyone, at that time, that the new Constitution 
was both federal and national. He was predicting that 
the power to Interfere with individual liberty, to the 
extent which Americans had surrendered any power 
of that kind to their governments, had been so wisely 
distributed, between the government of the citizens of 


214 


Citizen or Subject? 


America and the political entity which was each state, 
that it would never be necessary for the citizens of 
America to alter that distribution by giving any more 
to their government. That is why he prophesied that 
no new Article of the kind which only “conventions” 
of those citizens can make, Articles changing the “mass 
of powers” granted to that government by the First 
Article, would ever be needed. 

And we recall that this conviction probably in¬ 
fluenced the last day remembrance in the Philadelphia 
Convention by Madison and himself, that the Fifth 
Article should also contain some reference to the state 
legislatures and their future exercise of their existing 
abilities to make federal or declaratory Articles, which 
do not change the “mass of powers” in that First Ar¬ 
ticle grant and do not relate to government inter¬ 
ference with the individual liberty of the American 
citizen. 

The statement of Hamilton was not meant as a 
prophecy. It was the result of a great mind reasoning 
from cause to probable effect. As we come down 
through the century or more that follows that state¬ 
ment and reach the beginning of the year 1917, we 
pay our tribute to a mind which could reason so cor¬ 
rectly as to what would happen for more than a 
hundred years. We shall find that never again, from 
1787 to 1917, did experience find it necessary that the 
“conventions” of the American citizens, the “conven¬ 
tions” named in the Seventh and the Fifth Articles, 
should again be assembled to alter, as they alone can 
alter, the mass of enumerated powers to interfere with 
their own individual liberty, which they granted in that 
First Article. 

It is a striking commentary upon the ability of Ham- 


Respecting Human Freedom 


215 


ilton and his generation, when contrasted with our 
modern “constitutional thinkers,” that he knew and 
appreciated what would happen in a century to come, 
while they have not understood what had happened in 
a century that had gone, although the record of that 
century was spread out before them to read. None 
of our leaders have appreciated the fact that every one 
of the first seventeen Amendments to our Constitution 
was of the kind that state legislatures had ability to 
make before our Constitution was even drafted at 
Philadelphia, because all were federal (or declara¬ 
tory) Articles and were not national Articles. If they 
had known, after these seventeen Amendments were 
history, what he prophesied before the Constitution 
itself was adopted, the story of the last five years 
might not have been what we shall learn hereafter that 
it was. 

That we may know, of our knowledge, what he 
prophesied and what they entirely overlooked and 
ignored, let us briefly examine the nature of those 
seventeen Amendments. Thus we will learn why gov¬ 
ernments, known at Philadelphia in 1787 to be incom¬ 
petent to make national Articles, could and did make 
those seventeen Articles in the constitutional mode of 
procedure which the Fifth Article provided for the 
exercise of their existing ability limited to the making 
of federal or declaratory Articles. 

The first ten Amendments were declarations in¬ 
sisted upon by the American citizens, assembled in 
“conventions” where we have sat, as specific security 
against government usurpation of power over their 
individual freedom. The Supreme Court has repeat¬ 
edly declared that everything in those ten Amendments 
was in the Constitution when it was ratified by those 


2 i6 


Citizen or Subject? 


“conventions” and that the Amendments simply de¬ 
clared what the will of the people themselves, assem¬ 
bled in those “conventions,” had already established 
as the fundamental law in America. Certainly no man 
would challenge the prophecy of Hamilton on the 
theory that any one of those Amendments added to the 
mass of government powers to Interfere with human 
freedom. They are, each and every one of them, the 
declaration that government cannot do “this” and 
government cannot do “that.” So far from being 
national Articles, the kind which only “conventions” of 
American citizens could or can make, the kind which 
tell government that It can command the American 
citizens on this or that subject, they are all Articles 
which tell government that It cannot command the 
American citizen. And, for the further security of 
the Individual freedom of the American citizen, a 
security never needed more than in this year 1923, the 
Tenth Declaration emphatically declares who It is that 
RETAINS the exclusive ability to alter. In one Iota, “the 
mass of powers” (over the Individual freedom of the 
American citizen) granted hy them In the First Article 
and the exclusive ability to exercise any power of that 
kind over them, which was not granted In the First 
Article. Who can deny that, stated In our own words, 
this is what we find In the plain declaration of the 
Tenth Amendment? “We, the people of America, 
assembled In our conventions, have granted to the 
American government enumerated powers of the First 
Article. They are the only powers of that kind dele¬ 
gated to any government, by which It can Interfere with 
our Individual freedom In our capacity as American 
citizens. All powers, which the citizens of each state 
have hitherto had and which we have not taken from 


Respecting Human Freedom 


217 


them herein, we have left with them; and the citizens 
of each state can grant so much of said powers as they 
please to their own government to govern them as 
citizens of that state. All other powers, outside those 
we have granted to our government to Interfere with 
us and those we have left to the citizens of each state 
for their own respective exercise, we reserve exclusively 
to ourselves, in our capacity as citizens of America. 
And, if any government should deem it wise that any 
one of these powers (which we so reserve exclusively to 
ourselves) should be exercised, we have provided in 
the Fifth Article the mode of procedure in which wCy 
assembled in our conventions, can constitutionally 
exercise it or grant it to the government which wants 
to exercise it.” 

The powers the people have given to the General Gov¬ 
ernment are named in the Constitution, and all not there 
named, either expressly or by implication, are reserved to 
the people and can be exercised only by them, or upon 
further grant from them. (Justice Brewer in Turner v. 
Williams, 194 U. 5. 279.) 

Later herein we Americans, fresh from the “conven¬ 
tions” which demanded these declarations for the 
better protection of Individual liberty, are going to 
hear expounded a doctrine, which would mean that 
these declarations were themselves the American 
Magna Charta. We are going to hear, to our amaze¬ 
ment, that these declarations were a compact between 
an omnipotent government and Its subjects, ourselves, 
who have always Imagined that we were “citizens” and 
not “subjects.” We are going to hear, to our utter 
incredulity, that these declarations are the promise of a 
government—Itself omnipotent over ourselves and our 


2I8 


Citizen or Subject? 


Constitution and oiir government which we thought to 
be the supreme government In America—that we, the 
subjects of that omnipotent government, may have 
certain privileges which this omnipotent government 
will not take from us. 

When first we shall hear this 1917 resurrection of 
the Tory concept that government Is master and 
Americans are “subjects,” that government is the state 
and we are Its assets, we shall naturally be astounded 
and Indignant that even a few Inhabitants should still 
retain what Madison called “the Impious doctrine” of 
the Old World, that people are made for governments, 
not governments for the people. Quickly, however, 
we shall become alarmed to find how widespread, 
among the “constitutional thinkers” of our own gen¬ 
eration, Is the complacent acceptance of the Tory 
concept and to learn that, when its application In any 
given Instance Injures a client of one of those constitu¬ 
tional thinkers, no matter how he may argue against 
the application In the particular Instance, he neither 
knows nor uses for his client the fact that the Statute 
of ’76 repealed the doctrine on which Magna Charta 
rested, the Tory concept that government is the state 
and that we are Its “subjects.” 

It will be difficult for us to understand these leaders 
of our generation. In addition to what we have just 
lived through with the early Americans, these leaders 
will have before them countless decisions of the Su¬ 
preme Court, flatly contradicting the Tory concept on 
which all these leaders reason. “The concessions of 
Magna Charta were wrung from the King as guar¬ 
antees against the oppressions and usurpations of his 
prerogatives. . . . The omnipotence of Parliament 
over the common law was absolute, even against 


Respecting Human Freedom 219 

common right and reason. The actual and practical 
security for English liberty against legislative tyranny 
was the power of a free public opinion represented by 
the Commons.” We are going to find many of our 
leaders with the fixed Tory concept that there is in 
America a legislative government, unknown to the 
generation of Americans who created all government 
in America, and that this omnipotent government can 
do whatever It pleases, without any constitutional re¬ 
straint, with almost everything In America, including 
ourselves and our Constitution and our American gov¬ 
ernment. Curiously enough, we are going to be told 
that the one thing, in which this omnipotent legislative 
government falls short of absolute omnipotence, has 
nothing to do with any Individual human freedom, but 
is Its inability to change the equal representation of 
every state In our Senate. It will be quite amazing to 
us to hear these men, not proving this Tory concept 
but stating it as axiomatic American law and on it 
basing their every argument and audaciously claiming 
that our Supreme Court has no right even to consider 
whether It is so or not. But there will be something 
to alarm us even more. We will find our other “con¬ 
stitutional thinkers,” by circumstances obliged to chal¬ 
lenge some particular deduction from this Tory con¬ 
cept, without any knowledge of the Invincible facts 
which challenge the concept Itself. To most of these 
men It will be as If the Statute of ’76 had been re¬ 
pealed and the result of our Revolution reversed, in 
1787, by the very “conventions” In which we have sat. 
It will be our amazement to hear that these “conven¬ 
tions” never created the citizen of America but that 
the American people, assembled therein, voluntarily 
made themselves “subjects” of the omnipotent govern- 


220 


Citizen or Subject? 


ment. And these modern “constitutional thinkers” 
will discuss this omnipotent government on the basis 
that those “conventions” made that particular govern¬ 
ment (not the one to whom the First Article grants its 
powers) attorney in fact for the general people of 
America, authorized to interfere with their individual 
freedom, “on all matters whatsoever.” To most of 
these men, it will be as if the Supreme Court, in count¬ 
less ways, had not declared: 

In this country, written constitutions were deemed es¬ 
sential to protect the rights and liberties of the people 
against the encroachment of power delegated to their gov¬ 
ernments, and the provisions of Magna Charta were in¬ 
corporated into bills of rights. . . . Applied in England 
only as guards against executive usurpation and tyranny, 
here they have become bulwarks against arbitrary legisla¬ 
tion; but in that application, as it would be incongruous 
to measure and restrict them by the ancient customary 
English Law, they must be held to guarantee, not partic¬ 
ular forms of procedure, but the very substance of in¬ 
dividual rights to life, liberty and property. 

Of course, fresh from the conventions of old, we 
shall know that these men are talking nonsense. We 
shall know that the last two quoted statements from 
the Supreme Court, in Hurtado v. California, i lo JJ, S, 
516, are but the expression of what was once the com¬ 
mon knowledge of a people then “better acquainted 
with the science of government than any other people 
In the world.” But, as our knowledge shall be as the 
knowledge of the Americans of old, who fought an 
eight year war of sacrifice to make any such Tory con¬ 
cept In America absolute nonsense. It is well for us, 
while we are examining the nature of the first seventeen 
Amendments of our Constitution, to keep In mind one 


Respecting Human Freedom 


221 


thing, which we now know and which, If It had not been 
forgotten, would have prevented the monumental 
blunder of the generation In which we ourselves are the 
American citizens. This one thing Is the fact that the 
Constitution, made In the conventions we have just 
left. Is a federal and a national Constitution. That 
fact and Its Influence upon the Convention, which 
framed the Fifth Article, and on the “conventions” of 
the American citizens, which made that Article, led 
them to provide, in their Fifth Article, the constitu¬ 
tional mode In which state governments could 
exercise their existing limited abilities to make federal 
and declaratory Articles, like all the Articles of 1781 
and like the first seventeen Amendments, and also to 
provide therein the constitutional mode In which the 
“conventions” of the American citizens could exercise 
their exclusive ability to make NATIONAL Articles, like 
the First Article and the supposed new Eighteenth 
Amendment. 

Having fixed this clearly In our mind, we now pro¬ 
ceed to examine the nature of the remaining Amend¬ 
ments that were made, prior to 1917. 

The Eleventh Amendment gave no power of any 
kind to anyone. It simply declared that the Court of 
the American nation could not have jurisdiction of 
law suits against one of the states “by citizens of an¬ 
other state, or by citizens or subjects of any foreign 
state.” We commend, however, to the modern “con¬ 
stitutional thinkers,” whose Tory concept we shall 
meet later, this early American recognition of the fact 
that. In America, we are citizens!^ It will be noticed 
that this Eleventh Amendment, declared by the Presi¬ 
dent to have become part of the Constitution on 
January 8, 1798, speaks of the “citizens” or “sub- 


222 Citizen or Subject? 

jects” of any foreign state but speaks only of ^^citizens^^ 
in America. 

The Twelfth Amendment likewise has naught to do 
with power of governments over human liberty. It 
deals solely with the manner in which the Chief 
Executive of America shall be chosen. 

The Thirteenth, Fourteenth and Fifteenth Amend¬ 
ments are the famous so called Slavery Amendments. 
Even the modern “constitutional thinker” of 1917 and 
1920, no matter how Tory his concept, will hardly 
dare to claim that these Amendments give government 
power to interfere with the rights which the Creator 
gave to the human being. 

On the most casual examination of the language of these 
Amendments, no one can fail to be impressed with the one 
pervading purpose found in them all, lying at the founda¬ 
tion of each, and without which none of them would have 
been even suggested; we mean the freedom of the slave 
race, the security and firm establishment of that freedom, 
and the protection of the newly-made freeman and citizen 
from the oppressions of those who had formerly exercised 
unlimited dominion over him. (Slaughter House cases, 
Supreme Court, 16 Wall. 36 at p. 71.) 

Of these Amendments, in the Civil Rights Cases, 
109 U. S. 3, the Supreme Court again said that “they 
abolished slavery, and established universal freedom.” 

When, therefore, in the year 1920, we shall hear 
these Amendments, which establish universal freedom, 
cited as Articles of exactly the same nature as a sup¬ 
posed new Article, directly interfering with the free¬ 
dom of the American citizen on a matter not enumer¬ 
ated in the First Article, we shall‘be rather surprised. 
But we shall be more than surprised, when we hear 
the reason of the modern “constitutional thinker” why 


Respecting Human Freedom 


223 


both Articles are within the power of the state govern¬ 
ments, who are his clients, to put into our Constitution. 
Not knowing that our Constitution is a federal as well 
as a national Constitution, not knowing that his gov¬ 
ernment clients always had the ability to make federal 
Articles and never had and have not now the ability 
to make Articles which interfere with human freedom, 
we shall find him stating, as axiomatic, that the slavery 
Amendments, which establish universal freedom, and 
the supposed Article of 1917, which interferes with 
freedom of the individual, are identical, for the reason 
that both affect the individual and his rights and 
liberties. On the remarkable nature of this identity, 
that one secures and the other interferes with indi¬ 
vidual liberty and, therefore, both afect individual 
liberty, we shall find that he bases the Tory concept 
that state governments can do as they please with all 
liberties of the American citizens. While his theory will 
serve only to amuse us, we commend, to his reading, 
this extract from a better American lawyer:—“The 
legislature may not confer powers by law inconsistent 
with the rights, safety, and liberties of the people, be¬ 
cause no consent to do this can be implied, but they may 
pass limitations in favor of the essential rights of the 
people.” (Woods appeal, 75 Pa. 59.) 

The Sixteenth Amendment simply removes, from 
one of the great powers granted to Congress by the 
citizens of America in their First Article, a federal 
limitation upon its exercise, a limitation entirely for 
the benefit of the states which are political entities. 

In the “conventions” we have just left, the First 
Article grant of power to the new government to im¬ 
pose direct taxation was the object of incessant attack. 
No prerogative of government is more cherished by 


224 


Citizen or Subject? 


any government than its ability to exact financial 
tribute from human beings by means of taxation. 
Under the old federation of states, although the 
federal government needed money, it was without any 
power of taxation. All it could do was to ask the vari¬ 
ous state governments to supply it with the money. Ar¬ 
ticle VII of the “Articles of Confederation” provided 
that the expenses of the federal government “shall be 
defrayed out of a common treasury, which shall be sup¬ 
plied by the several states, in proportion to the value 
of all land, within each state, granted to or surveyed 
for any person, as such land, and the buildings and 
improvements thereon, shall be estimated, according to 
such mode as the United States in Congress assembled 
shall, from time to time, direct and appoint. The 
taxes for paying that proportion shall be laid and 
levied by the authority and direction of the legislatures 
of the several states, etc.” 

Section 8 of the First Article of the proposed new 
Constitution read that “The Congress shall have 
power to lay and collect taxes, duties, etc.” At Phila¬ 
delphia, in 1787, a tremendous fight was made against 
the proposal of this grant by the citizens of America 
to their government. Many delegates at Philadelphia, 
who had the financial welfare of their particular state 
government at heart, contended that, if the new gov¬ 
ernment were given the power of direct taxation of the 
people, the new government would leave the people 
with no money to be collected by the state governments 
for their own purposes. The nationalists at Phila¬ 
delphia, however, knew that a national government 
without power of direct taxation over its own citizens 
would be a helpless government. Therefore, they in¬ 
sisted that the proposed grant of this power remain in 


Respecting Human Freedom 


225 


the First Article. As a concession to the opposition 
made on behalf of the state governments, there was 
added to the proposed First Article a purely federal 
limitation on the exercise of the national power of 
direct taxation. This federal limitation, on behalf of 
the states and their governments, read: “No capita¬ 
tion, or other direct, tax shall be laid, unless in propor¬ 
tion to the census or enumeration hereinbefore directed 
to be taken.” 

In the conventions of the citizens of America, the 
friends of the respective state governments made every 
effort to defeat the First Article grant of national 
power to impose direct taxation upon the citizens of 
America. 

In the Virginia convention, from Randolph and 
from Henry, arguing respectively for and against the 
grant, we get our certain knowledge that the appor¬ 
tionment limitation on the exercise of the granted 
power was a purely federal limitation aimed entirely 
to secure to the respective state governments the just 
amount of the moneys which could be collected by 
taxation from the Americans living in the respective 
states. 

Randolph argued: “The difficulty of justly appor¬ 
tioning the taxes among the states, under the present 
system, has been complained of; the rule of apportion¬ 
ment being the value of all lands and improvements 
within the states. The inequality between the rich 
lands of the James River and the barrens of Massa¬ 
chusetts has been thought to militate against Virginia. 
If taxes could be laid according to the real value, 
no inconvenience could follow; but, from a variety of 
reasons, this value was very difficult to be ascertained; 
and an error in the estimation must necessarily have 


226 


Citizen or Subject? 


been oppressive to a part of the community. But, in 
this new Constitution, there is a more just and equitable 
rule fixed—a limitation beyond which they cannot go. 
Representatives and taxes go hand in hand; according 
to the one will the other be regulated. ... At pres¬ 
ent, before the population is actually numbered, the 
number of representatives is 65. Of this number, 
Virginia has a right to send ten; consequently she will 
have to pay ten parts out of sixty-five parts of any 
sum that may be necessary to be raised by Congress. 
This, sir, is the line.” (Randolph, 3 Ell. Deb. 121.) 

As to the granted power of direct taxation, Henry 
argued: “We all agree that it is the most important 
part of the body politic. If the power of raising 
money be necessary for the general government, it is 
no less so for the states. . . . The general govern¬ 
ment being paramount to the state legislatures, if the 
sheriff is to collect for both—his right hand for Con¬ 
gress, his left for the state—his right hand being para¬ 
mount over the left, his collections will go to Con¬ 
gress. We shall have the rest. Deficiencies in col¬ 
lections will always operate against the states. . . . 
Congress will have an unlimited, unbounded command 
over the soul of this Commonwealth. After satisfy¬ 
ing their uncontrolled demands, what can be left for 
the states? Not a sufficiency even to defray the ex¬ 
pense of their internal administration. They must 
therefore glide imperceptibly and gradually out of 
existence.” (Henry, 3 Ell. Deh. 148 et seq.) 

The Sixteenth Amendment merely removed, in one 
respect, this federal limitation upon the exercise of 
the national power of direct taxation granted by the 
First Article. The Amendment read: “The Con¬ 
gress shall have power to lay and collect taxes on 


Respecting Human Freedom 


227 


incomes, from whatever source derived, without ap¬ 
portionment among the several states, and without 
regard to any census or enumeration.” This Amend¬ 
ment, being nothing but a change in the federal aspect 
of the Constitution, being a change in the protection 
given to each state as a political entity, was an Amend¬ 
ment which the state legislatures, each acting as attor¬ 
ney in fact for its own respective state, were entirely 
competent to make. 

The Seventeenth Amendment has no relation to 
human freedom. It merely provided that the state 
governments should no longer elect the august Sen¬ 
ators in the American Congress, some of whom we 
shall meet later herein. 

This last Amendment, prior to 1917, provided that 
those Senators should be thereafter elected in our 
states by ourselves, the American people. Curiously 
enough, it is from the Senate in which they sit that 
came the proposal which caused the trouble which is 
obliging us to educate ourselves to find our “when” 
and “how” between 1907 and 1917 we became “sub¬ 
jects” instead of keeping our status as citizens of 
America. 

Early in our education (p. 26) we were informed 
that our public statesmen and constitutional thinkers 
brought to the year 1917 the false “knowledge” that 
legislatures in America, if enough combined, had the 
omnipotence over individual freedom, which the early 
Americans denied to the British Parliament. Their 
false “knowledge” was undoubtedly caused by their 
failure to appreciate, if they knew or remembered, 
that America is a national union of men while there 
is also a subordinate and federal union of states. 
Ignoring this simple fact, they also ignored the impor- 


22 8 Citizen or Subject? 

tant fact that the Constitution is both national and 
federal and contains Articles of both kinds. Blind to 
both important facts, they acquired their false “knowl¬ 
edge” from the fact that the “legislatures,” to whom 
they ascribed omnipotence over individual freedom, 
had made the first seventeen Amendments. 

The fallacy of their deduction is mathematically 
demonstrable. 

A constitutional Article which gives to government 
any power to interfere with Individual human freedom 
IS the constitution of government of men. That is 
why the First Article was the constitution of the gov¬ 
ernment of the nation of men. And, In turn, that is 
why the legal necessity of having It made by the men 
themselves, in their “conventions,” was “felt and ac¬ 
knowledged by all” Americans. 

If one doubts that the First Article WAS the consti¬ 
tution of the government of men, test the truth of the 
statement in this way. First, assume that the “con¬ 
ventions” made no Article save the First. Then ask 
yourself If the whole American people would not have 
constituted their government with Its great enumerated 
powers to interfere with their Individual liberty. In 
the second place, make exactly the opposite assump¬ 
tion. Assume that the “conventions” made all the 
Articles from the Second to the Seventh, both Inclu¬ 
sive, hut did not make the First Article, Then ask 
yourself whether the whole American people would 
have constituted any government with a single power 
to Interfere with their Individual freedom. 

Let us now apply exactly the same test to each of 
the first seventeen Amendments and then to the sup¬ 
posed Eighteenth Amendment. 

Take any one of the first seventeen Amendments 


Respecting Human Freedom 


229 


and assume that anything new which it put into the 
Constitution was the entire Constitution. Then ask 
yourself whether, if the Constitution consisted solely 
of the new matter in the Amendment, there would be 
any government of the whole American people with 
a single power to interfere with their individual human 
liberty. Take all the seventeen Amendments and as¬ 
sume that any change all of them made was the entire 
Constitution. Then ask yourself whether, if any new 
matter in the seventeen Amendments composed the 
entire Constitution, would there be any government 
of the whole American people with a single power 
to Interfere with their Individual human liberty. 

Now make the same assumption about the supposed 
Eighteenth Amendment. Assume that it Is the entire 
Constitution and that there are< no other Articles. 
Immediately It Is seen that, if the Eighteenth Amend¬ 
ment were the entire Constitution, there would be a 
government of the whole American people with an 
enumerated power to Interfere with their individual 
human liberty. 

Now we see the fallacy of the false “knowledge” 
which our statesmen and constitutional thinkers 
brought to the year 1917. Now we know the mar¬ 
velous foresight of Hamilton when he stated his con¬ 
viction that Amendments would relate to “the organ¬ 
ization of the government, not to the mass of its 
powers.” None of the seventeen Amendments did 
relate “to the mass of Its powers” to Interfere with 
individual human liberty. That Is why state legisla¬ 
tures, representing the federal members of the union 
of states, could make the federal or declaratory seven¬ 
teen Amendments. The fact that those “legislatures” 
in 1787 could make Articles of that kind, as they had 


230 Citizen or Subject? 

made them In 1781, did not deceive the Americans at 
Philadelphia Into a false “knowledge” that those 
“legislatures” could make the First Article with Its 
enumerated powers to Interfere with the individual 
freedom of the members of the nation of men. The 
fact that the same “legislatures,” still representing 
the members of the subordinate union of states, still 
could make declaratory or federal Articles, and had 
made seventeen Articles of that kind, not one of which 
constituted new government power to Interfere with 
Individual liberty, should not have misled the states¬ 
men and constitutional thinkers of our generation. 

But it did. 


CHAPTER XV 


THE EXILED TORY ABOUT TO RETURN 

W E have now educated ourselves accurately to 
know, at the beginning of 1917, what was our 
own relation to all governments and what was the re¬ 
lation of those governments to one another. With 
certainty, we know that those relations, at the begin¬ 
ning of 1917, were exactly what they had been at the 
close of 1790. It is amazingly important that we 
never forget that particular knowledge, when reading 
the story of what has happened since the beginning 
of 1917. 

With certainty, through our education we know that, 
at both times, the following was our own relation to 
all governments and the relation of each of them to 
the others. 

No individual in America was a “subject” of any 
government or governments. Each individual was a 
“citizen” of the nation which is America. The citi¬ 
zens of America, as such citizens, had given to their 
only government its enumerated powers to interfere 
with their individual freedom. Those American citi¬ 
zens had given these enumerated powers by direct 
grant from themselves, in the only manner, in which 
they can act effectively on such a subject, by assembling 
in their “conventions.” Those American citizens had 
made it the imperative law of America that no new 
power of that kind (to interfere with their freedom) 

231 


232 ' Citizen or Subject? 

could be created except by the new exercise of their 
own ability in the same manner. 

The very essence of the wisdom and efficiency of 
the manner of the first exercise was that the exercise 
was by conventions^^ of themselves, chosen by them¬ 
selves, after specific grants had been proposed to them 
to be made by them. These “conventions,” chosen 
from among themselves for the one purpose of saying 
“Yes” or “No” to the proposed grants, had made 
those grants In the only way In which the American 
people “can act safely, effectively and wisely” In the 
making of such grants. In their Fifth Article, made 
In the first “convention” exercise, they had mentioned 
the very “convention” method in which they were then 
assembled to make their First Article grants. Thus, 
they made that method constitutional for future 
exercise of their own exclusive power to make grants 
of that kind. Thus they had secured their liberty 
against any attempt by government to Interfere with 
their Individual freedom, as American citizens, except 
in the matters named In the enumerated powers of the 
First Article. In this way, they had secured their 
liberty, in their capacity of American citizens, against 
any attempt by other governments than their only gov¬ 
ernment at Washington, even In the matters enumer¬ 
ated In the First Article. 

Nearly every Individual In America was also a citi¬ 
zen of a state. In each state, its citizens had vested 
the legislative government of the state with limited 
powers to interfere with the Individual freedom of 
those within the jurisdiction of that state. The limita¬ 
tions upon the power of each state government to 
Interfere with those within Its own jurisdiction were, 
firstly, limitations Imposed by the citizens of America 


The Exiled Tory About to Return 233 


in their Constitution upon the power of each state to 
govern itself; secondly, the limitations imposed by the 
citizens of each state in their own constitution; and, 
thirdly, the limitations imposed by the traditional 
American principle that no government, without limit, 
can do what it will with the individual freedom of its 
citizens. In each state, subject to those limitations, 
its own citizens were exclusively competent to deter¬ 
mine the exact quantum of ability which its own legis¬ 
lative government should have to interfere with the 
individual human freedom of those within its jurisdic¬ 
tion. No government or governments outside each 
state could interfere with the individual freedom of 
its citizens, as such citizens, in any matter. No outside 
government at all, except Congress, could interfere 
with their freedom, as human beings, in any matter. 
The legislative governments of the other states, either 
singly or collectively, on no matter, could either exer¬ 
cise themselves or give to any government a single 
power to interfere with the human beings in each 
particular state. The one American government, at 
Washington, could only interfere with those human 
beings on the matters enumerated in the First Article. 
No new ability in that government so to interfere with 
them could be granted except by direct grant from the 
citizens of America assembled in their “conventions.” 
The Fifth Article had been the command of the citi¬ 
zens of America that only a “Yes” from three fourths 
of those “conventions” of themselves should be valid 
to add a new power over themselves to those enumer¬ 
ated in their First Article. 

From 1776 to 1917 it had been the obeyed funda¬ 
mental law in America that no government could ac¬ 
quire, from another government or from other gov- 


234 


Citizen or Subject? 


ernments, any power to Interfere with the individual 
freedom of the human beings within its jurisdiction. 

The human beings in each state were members or 
citizens of the nation which is America. They were 
also, in each state, the members or citizens of the 
nation which is that state. The states were also mem¬ 
bers of their own federation, whose federal govern¬ 
ment had been continued by the citizens of America. 
In Its personnel, that federal government was Identical 
with the national government of those citizens of 
America. In the Fifth Article, the citizens of Amer¬ 
ica had recognized and mentioned the existing ability 
of the states, as political entities, to make constitu¬ 
tional Articles of a federal nature. For that reason, 
the Fifth Article had been the command of the citizens 
of America that, when the states exercised their lim¬ 
ited ability, a “Yes” from the legislatures of three 
fourths of the states should be effective to make a 
federal Article. 

In the matter of interference with individual human 
freedom, so far as experience tells the story, there had 
continued from 1776 to 1917 the knowledge of the 
legal fact, made basic American law by the Statute of 
’76, that no government could get any national power 
except by direct grant from Its own citizens, and that 
no government could exercise any national power over 
any but those in its own jurisdiction and then only by 
direct grant of that power from its own citizens. 

We know that this was the wonderful system of 
constitutional government under which Americans had 
lived from 1790 to 1917. We know that the Amer¬ 
icans, who were our predecessors in 1787, had pre¬ 
scribed that system as best calculated to protect their 
human liberty and our own from outside aggression 


The Exiled Tory About to Return 235 

and from usurpation of power by their governments 
and our own. Educated with them, from the day when 
they were all subjects of a legislative government, we 
know much of their struggle to rid themselves forever 
of the status of “subject” and to become free men. 
In that education, however, we have dwelt but little 
so far upon one phase of that struggle. At this point, 
it is essential that we educate ourselves briefly but 
accurately on that one phase. 

Whenever government exists, even government lim¬ 
ited to those powers thought by its citizens necessary 
to secure human liberty, the weakness of human nature 
makes it certain that the exercise of granted powers 
will not always be for the common benefit of the citi¬ 
zens who grant them. When the government is the 
State and human beings are its “subjects,” that weak¬ 
ness is usually more apparent. As a result, in every 
country the rich and powerful largely secure the actual 
control of government. That they may entrench them¬ 
selves in its control and the exercise of even its lawful 
powers, they lavish favors on a class actually large in 
number but comparatively constituting a small minor¬ 
ity of the people of the country. For this class, it is 
of material advantage that government should be the 
State and command the people as its “subjects.” When 
a man is born or educated as a member of this minor¬ 
ity, it is beyond the experience of the human race that 
his mental attitude should not regard the relation of 
“subject” to ruler as the proper relation of human 
being to government. 

In those earlier days, in whose experience we have 
just been educated, the human beings in America, who 
had that mental attitude, were distinguished from the 
Americans by the name “Tories.” Throughout this 


236 Citizen or Subject? 

book It is that mental attitude which we characterize 
as “Tory.” It is those who display that mental atti¬ 
tude whom we call “Tories.” 

At the time of our Revolution it is a historical fact 
that about one third of our population was Tory in 
its mental attitude. Many of the Tories, quite possi¬ 
bly most of them, were actuated by a sincere and deep 
conviction that it was better for every one that human 
beings should be subjects. That conviction had been 
the basis of nearly all science of government for cen¬ 
turies. It is really a remarkable fact that our history 
should show, from their recorded statements and writ¬ 
ings, so many men in 1787 accurately grasping the 
fallacy of that historical doctrine that men were made 
for kings or governments. 

In our education, we now grasp accurately that the 
Americans, who ended forever the status of “subject” 
in America, in their Revolution, had not only to con¬ 
tend with their former omnipotent government but 
also with one third of their own population, the Tories. 
When that Revolution had succeeded, when the Statute 
of ’76 had actually been made the basic law of Amer¬ 
ica, many Tories, in the natural course of events, be¬ 
came citizens of the particular state, now a free repub¬ 
lic, in which they lived. When the Convention of 1787 
assembled at Philadelphia, when the respective “con¬ 
ventions” in each state later assembled, many dele¬ 
gates were men with a known leaning to the Tory 
mental attitude. It is not to be understood that, by 
reason of this fact, their loyalty to the new institutions 
of their country was not sincere. One of the great 
liberties secured by those new institutions was the right 
of the human being to think and talk as he pleased as 
to what is the mode of government best designed to 


The Exiled Tory About to Return 237 

secure the happiness of men. As a matter of fact, 
when those “conventions” assembled, many of our 
most prominent Americans of the Revolution had 
begun sincerely to doubt whether the American people 
had yet learned enough to profit most by their legal 
ability now to dictate to all their governments how 
much power each government should have. It is the 
record of impartial history that the people’s distribu¬ 
tion of all surrendered power of a national kind, the 
grant to the new government and reservation to the 
old state governments, was dictated by two opposite 
factors. The wise and able leaders, whether their 
mental attitude was American or Tory, knew that the 
general government must get a grant of much power 
of that kind, if it were successfully to promote the 
welfare of the American people. On the other hand, 
they knew with certainty that such grants must be 
specified and enumerated and limited, or the American 
people would make no grant at all. It was, as it still 
is, the basic law of America that grants of that kind 
could only be obtained directly from the people them¬ 
selves. The American mental attitude, that citizens 
and not governments shall define the extent of gov¬ 
ernment power to interfere with individual freedom, 
was the controlling factor when the Constitution made 
its great distribution of all surrendered powers. 

If we go back to the “conventions” of those who 
established the system, we find a striking fact. In 
those “conventions” there were many men whose per¬ 
sonal opinion always had been and still was in full 
accord with the Tory concept of what ought to be the 
relation of government to human being. But these 
men, with that Tory concept of what government 
ought to be, were just as keenly aware as were those 


238 


Citizen or Subject? 


with the American concept, that the Tory concept had 
forever disappeared from American law. Whenever 
any suggestion was based upon the Tory concept, these 
very men were among the quickest to perceive and the 
most strenuous to insist that the suggestion could not 
be met because the American concept had displaced 
the Tory concept forever in America. If our modern 
leaders, who have the same Tory concept of what 
government ought to be, had evinced the same per¬ 
ception and the same insistence, the story of the last 
five years would be a different story. Because these 
leaders have had no knowledge of what America is, 
we average Americans must now come straight from 
the “conventions” in which the Americans established 
the Constitution to secure individual freedom and v/e 
must educate ourselves in the story of the last five 
years in which our governments and our leaders have 
calmly assumed that citizens are subjects. 


CHAPTER XVI 


THE TORY ^^EIGHTEENTH AMENDMENT^^ 

TN the closing month of 1917, the American people 
had been for* eight months participants in the 
World War. In that winter, under the direction of 
their only government, exercising its war power, they 
were marshalling all that they had to win that war 
and to win it quickly. The mind of the people them¬ 
selves was concentrated on that one purpose. The 
response of the average American citizen to the call 
of his government, the assembling of millions of aver¬ 
age American citizens as soldiers for that war, the 
outpouring of their money by other millions, should 
have made it impossible that the government servant 
of those American citizens should have entirely for¬ 
gotten and ignored the knowledge of the “conven¬ 
tions” of 1787, that the American is a citizen and not - 
a subject. Even if their personal experience had made 
them members of the class which naturally have the 
Tory mental attitude, the spirit of 1917 should have 
awakened our legislators from their wrong Tory con¬ 
cept of our American basic law. If plain words were 
needed to teach them that basic law, only ten years 
earlier the Supreme Court had stated that law in words 
which even a child can understand. 

The powers the people have given to the general gov¬ 
ernment are named in the Constitution, and all not there 
named . . . are reserved to the people and can be exer¬ 
cised only by them, or upon further grant jrotn them. 
(Justice Brewer, in the Supreme Court, 1907, Turner v. 
Williams, 194 U. S. 279.) 

239 


240 


Citizen or Subject? 


Yet the statesmen of America, when its citizens were 
offering their lives and their all, chose that December 
of 1917 to propose that legislative governments, which 
have never been the governments of the American citi¬ 
zen, should exercise one of those reserved powers of 
“the people” and should give to the legislative gov¬ 
ernment of the American citizens future ability to 
exercise that same power, although American citizens 
had expressly reserved the power to themselves exclu¬ 
sively. 

In December, 1917, as in January, 1790, the Ameri¬ 
can Congress was the only legislative government of 
the American people. 

All powers of a national character which are not dele¬ 
gated to the national government by the Constitution are 
reserved to the people of the United States. (Justice 
Brewer, in the Supreme Court, Kansas v. Colorado, 206 
U. S. 46 at p. 90.) 

Outside of that legislature, American citizens have 
no legislative government. 

Its powers are limited in number, but not in degree. 
Within the scope of its powers, as enumerated and defined, 
it is supreme and above the states; but beyond, it has no ex¬ 
istence. (Justice Waite, in the Supreme Court, United 
States V. Cruikshank, 92 U. S. 542.) 

In the Senate, on April 4, 1917, Senator Sheppard 
of Texas had Introduced a Resolution, known as Sen¬ 
ate Joint Resolution 17. The Resolution Itself, apart 
from the proposed new constitutional Article which 
the senator suggested that legislative governments 
should make, read as follows: '^Resolved by the Sen¬ 
ate and House of Representatives of the United States 


4 


The Tory “Eighteenth Amendment” 241 

of America in Congress assembled {two thirds of each 
House concurring therein)y That the following amend¬ 
ment to the Constitution be, and hereby is, proposed 
to the States, to become valid as a part of the Con¬ 
stitution when ratified by the legislatures of the several 
States as provided by the Constitution:” 

The proposed new national Article, which this 1917 
Resolution suggested should be made by legislative 
governmentsy originally and in April, 1917, read as 
follows: 

“Article—. 

“Section i. The manufacture, sale, or transporta¬ 
tion of intoxicating liquors within, the importation 
thereof into, and the exportation thereof from the 
United States and all territory subject to the jurisdic¬ 
tion thereof for beverage purposes are hereby pro¬ 
hibited, 

“Section 2. The Congress shall have power to en¬ 
force this article by appropriate legislation, and nothing 
in this article shall deprive the several States of their 
power to enact and enforce laws prohibiting the traffic 
in intoxicating liquors.” 

By reason of our education in the actual constitu¬ 
tion of our only American government and our respec¬ 
tive state governments, we grasp immediately the 
startling nature of the suggestion that the state gov¬ 
ernments make that Section i and that Section 2. We 
first dwell with amazement upon the proposed Section 
I and its proposed makers. 

It is a general and direct command to all human 
beings anywhere in America, directly interfering with 
their individual freedom, on a matter not enumerated 
in the First Article. Since we denied omnipotence to 


242 Citizen or Subject? 

Parliament, no legislature or legislatures had ever 
dared to make any general command to the American 
people, except the American Congress and it only since 
1789 and on matters enumerated In the First Article. 
From 1776 to 1789, no legislature or legislatures had 
any power whatever to make a general command to 
Americans on any subject whatever. When Amer¬ 
icans, In answer to the Philadelphia 1787 proposal, 
made themselves a nation and constituted Its govern¬ 
ment, they gave to that government enumerated 
powers to make general commands on some subjects. 
All other power to make general commands of that 
kind they withheld from every government and re¬ 
served exclusively to themselves, as they had denied 
every power of that kind to every government In the 
world by their Statute of ’76. For which very clear 
reasons. It had been continually repeated In the Supreme 
Court for a century that only one government In the 
world could make a general command to the citizens 
of America, and that the Congress Itself could not 
make any such command on any subject not enumer¬ 
ated In the First Article. 

The Congress proposal of the Eighteenth Amend¬ 
ment was Its own recognition of the truth that the sole 
government of American citizens had no power to 
command them on that subject. It is probable that 
nothing ever originated in Congress more remarkable 
than this proposal that, because Congress Itself was 
without the power to make the command, Congress 
should ask Inferior governments of other citizens to 
make a command to the American citizens. If It were 
possible that this could be done, there would be no 
American citizen. While no public leader or renowned 
lawyer has known this simple fact, the story of five 


The Tory “Eighteenth Amendment” 243 

years has shown how difficult it is to educate the aver’- 
age citizen away from the “American” mental attitude 
of 1776. In 1922, our Chief Executive commented 
on the fact that the disobedience of American citizens 
to the command made by the state governments had 
become a public scandal. From 1765 on, similar dis¬ 
obedience of Americans to commands made by gov¬ 
ernment without authority from Americans was a pub¬ 
lic scandal to Tories in America and in the British 
Parliament. 

There can be no mistake about the Tory mental 
attitude of the supposed American government which 
asked the governments of state citizens to make the 
1918 command to the American citizens, interfering 
with their individual liberty on a matter outside the 
First Article. The request was a frank avowal of 
the Tory concept that the people are “subjects” and 
that government can constitute new government of 
men “in all matters whatsoever.” Even in choosing 
the time for the proposal and the command, there was 
sincere and flattering imitation of a Tory precedent 
of Revolutionary days. When Americans of New York 
were away from their homes and at the battlefields 
of the Revolution, it was a Tory who stirred up the 
Flouse of the Six Nations to make a home attack upon 
what was cherished by those Americans. And it can¬ 
not be ignored that it was in 1918, when millions of 
Americans were away from their homes either fight¬ 
ing or prepared to fight for human liberty, the Houses 
of forty-five distinct nations were stirred up to make 
a home attack upon what those Americans cherished, 
their individual freedom. And the analogy does not 
end with this fact. Whenever the Tory concept of 
the relation of government to “subject” has prevailed, 


244 


Citizen or Subject? 


government has never recognized any obligation of 
government to obey law made by government. In the 
years which followed 1918, this was strikingly exem¬ 
plified by the sole American government which had 
asked the governments of state citizens to make a com¬ 
mand to the citizens of America. The command, in 
simple English, forbade that certain things be done 
in “the United States and all territory subject to the 
jurisdiction thereof.” The American government in¬ 
sisted that its citizens must obey the command. But 
the American government itself frankly added that, 
on its own ships which flew the American flag, it would 
not pay the slightest attention to the command. And 
not until this frank Tory attitude had been given un¬ 
enviable notoriety did the American government ask 
the remarkable information from its Attorney General 
whether ships, owned by the American government 
and flying the American flag, constituted “territory 
subject to the jurisdiction” of America. Then, while 
the chief champion of the new Article before the Court 
of 1920 and his associate government officials waited 
for the information from their associate Attorney Gen¬ 
eral, the American government continued to act on the 
claimed assumption that its ships were not “territory 
subject to the jurisdiction” of America. Facts speak 
for themselves. It seems impossible to question the 
consistent Tory attitude of the American government 
in every matter relating to the supposed Eighteenth 
Amendment. 

Let us now consider the second section of this amaz¬ 
ing new Article, as such second section was originally 
suggested by the Senator from Texas. 

In its then form it was the suggestion that, after or 
simultaneously with the state government exercise of 


The Tory “Eighteenth Amendment” 245 

an imaginary power to command the American citi¬ 
zens, those same state governments should vest in the 
only government of American citizens a future ability 
to make commands on the same subject, a subject not 
enumerated in the First Article. The Statute of ’76, 
the reasoning and the decision at Philadelphia in 1787 
that its First Article could only be made by the “con¬ 
ventions,” the clear and explicit statements in the Su¬ 
preme Court (from Marshall to Brewer in 1907) that 
no valid grant of national power could ever be made 
except by the “conventions,” the prescription in the 
Fifth Article of the constitutional mode in which a 
“Yes” from three fourths of those conventions would 
validly make grants of such power—all these things 
meant nothing whatever to the Senator from Texas 
or his colleagues in Congress, to the legislators in the 
various states, to government officials or to the “con¬ 
stitutional” lawyers who have discussed the Eighteenth 
Amendment. None of them realized the clear fact 
that, if government could get new power over human 
beings from govei'nment, the Americans, through 
whose education we have lived, had wholly failed to 
achieve their one purpose, security of human freedom 
from any interference by government except under 
some power of interference directly granted by them¬ 
selves to that government. 

Many of the colleagues of the Senator from Texas 
questioned the wisdom of asking the grant on that 
subject. We know not one, however, who questioned 
the ability of the proposed donors to make the grant. 
We know not one who questioned as a fact that a 
fractional part of our state governments have the very 
omnipotence over the individual people of all Amer¬ 
ica, which those earlier Americans denied to the Brit- 


246. 


Citizen or Subject? 


ish Parliament. Among our “constitutional” lawyers, 
there were many who were engaged to combat in court 
the validity of the new Article. They questioned its 
validity on the ground that it took from the states, 
which are mere political entities, part of the power 
which each state had not surrendered. In this, they 
ignored the legal fact, settled by innumerable decisions, 
that the people of America, not the states, made the 
Constitution and all its grants of national power. 
They questioned its validity on the ground that the 
power (to make constitutional Articles) “granted” 
(?) in the Fifth Article did not include the power to 
make fundamental changes in the Constitution. In 
this, they wholly ignored the certain fact that no such 
power is granted in the Fifth Article but that two 
distinct powers, then existing, one limited and the other 
unlimited, are mentioned and not granted in the Fifth 
Article, and a mode of procedure for the future exer¬ 
cise of each is prescribed. In all their challenges to 
the validity of the new Article, however, we know not 
one who ever knew or mentioned the only and the in¬ 
vincible challenge to that validity, that new power to 
interfere with the individual freedom of the American 
citizen could only be obtained constitutionally by direct 
action of the American people themselves, assembled 
in the “conventions” of the Fifth Article. It meant 
nothing to them that the Fifth Article prescribed that 
such grants should be valid only when there had been 
a “Yes” evoked from three fourths of those conven¬ 
tions. If we would realize the amazing ignorance, 
during the last five years, shown on these matters, we 
must continue the tale of the proposed new Article. 

Before the proposed Article had left the Senate for 
the first time, what we now call Section 2 read, “The 


The Tory “Eighteenth Amendment’’ 247 

Congress shall have power to enforce this Article by 
appropriate legislation.” With the section in that 
language, the Joint Resolution was passed and sent to 
the House of Representatives on August i, 1917. 
{Congressional Record, Vol. 55, p. 5666.) It was 
reported out of the Judiciary Committee and taken up 
by the House on December 17, with the proposed 
Section 2 reading, “The Congress and the several 
states shall have concurrent power to enforce this Ar¬ 
ticle by appropriate legislation.” 

Somewhat educated with those Americans whose 
experience made them better acquainted with the sci¬ 
ence of government than any other people in the 
world, we realize that only Mark Twain could do full 
justice to the nature of this alteration to the proposed 
Section 2. It was not enough that Congress, because 
it did not have the power to make a certain command 
to its own citizens, should ask inferior governments, 
which are not the government of the American citizens, 
to make that command. It was not enough that the 
American Congress, when asking these inferior gov¬ 
ernments to make that command, should ask them to 
give Congress a future ability to make commands on 
that subject on which the citizens of America had never 
given any government or governments ability to make 
any commands to the citizens of America. The House 
alteration in the second suggestion from the Senate 
would indicate that the House became jealous of the 
Senate ignorance of fundamentals in the relations of 
governments to one another in America and in the re¬ 
lation of all governments in America to the individual 
American. It is difficult otherwise to explain the 
House alteration in the Section 2 of the Amendment 
which came from the Senate. As the House reported 


248 


Citizen or Subject? 


the two sections back to the Senate, this is what the 
two sections proposed. Section i embodied a com¬ 
mand (to be made by the inferior state legislatures) 
which directly interferes with the Individual freedom 
of the American citizens on a subject not enumerated 
in their First Article. Section 2 embodied a grant of 
future ability to make similar commands on the same 
subject, and the grant was to be from the state legis¬ 
latures to the Congress and to the very state legisla¬ 
tures who were supposed to make the grant itself and 
the command of the First Section. 

This is exactly the form in which the Second Section 
of the supposed new Amendment was later ratified by 
these very state legislatures. That Second Section has 
been the subject of unlimited discussion for the past 
five years. Every one seems to have given it what¬ 
ever meaning pleased hirh at some particular moment. 
When the House Chairman of the Judiciary Commit¬ 
tee reported this Section to the House he frankly stated 
that “We thought it wise to give both the Congress 
and the several states concurrent power to enforce this 
Article and let that power be set forth and granted in 
the Article we propose to submit.” {Congressional 
Record, Vol. 56, p. 424.) But when Wheeler, counsel 
for a political organization which dictated that gov¬ 
ernments constitute this new government of men, wrote 
his briefs to uphold the validity of the new Article 
which Webb championed in the House, he explained 
that this Webb Second Section “does not add to the 
power already conferred upon Congress by Section i” 
but that “it does, however, make clear that the power 
is reserved to the states to pass legislation in aid of 
the acts of Congress.” As in most matters, the various 
champions of the supposed Eighteenth Amendment are 


The Tory “Eighteenth Amendment” 249 

unable to understand and agree upon the meaning of 
plain English. From time to time, in our education, 
it will be clear that they do not know and understand 
what the American people did in 1788 in their “con¬ 
ventions” but that, while flatly contradicting one an¬ 
other, they are all satisfied that the American citizens 
did give the state legislatures unlimited ability to in¬ 
terfere with individual freedom of the American citi¬ 
zen. It seems natural, therefore, to find Webb and 
Wheeler flatly contradicting one another as to the 
plain meaning of Section 2 of the Eighteenth Amend¬ 
ment. Despite the absurdity of the concept. Section 2 
means exactly what Webb stated it to mean when he 
brought it from the House Judiciary Committee which 
had written it. It means, in the plainest English, that 
the state legislatures grant to themselves (as well as 
to Congress) ability to make commands of the very 
same kind as the same state legislatures make, without 
the grant, in the First Section. And it is a remarkable 
fact that, in all the comment on that Section 2 for five 
years, no word has been spoken about this ridiculous 
proposal that the state legislatures make a certain 
command and then grant themselves the power to 
make such commands. However, the absence of such 
comment has been quite in keeping with the fact that 
our modern leaders and lawyers, during the same five 
years, have never known or commented upon the fact 
that the Eighteenth Amendment depends for its ex¬ 
istence upon the similar and equally absurd concept 
that the Fifth Article is a grant from the “conventions” 
to the “conventions” as well as to the state legislatures. 

By reason of our education, we have many natural 
questions to ask about that Section 2 and the unique 
House addition to its supposed grant. While some 


250 


Citizen or Subject? 


of those questions may be academic, inasmuch as we 
know that the new Article is not in the Constitution, 
the thoughts which suggest the questions are strikingly 
pertinent to our general query, “Citizen or Subject?” 

In the first place, we recall the opening words of 
Section 4 of the Fourth Article of the Constitution. 
Those words are, “The United States shall guarantee 
to every State in this Union a Republican Form of 
Government.” These words immediately precede the 
Fifth Article. Moreover, the Supreme Court has de¬ 
cided that it is the particular duty of Congress to see 
that this particular guarantee of the Fourth Article 
is strictly fulfilled. (Luther v. Borden, 7 How, i; 
Pacific Telephone Company v. Oregon, 223 U.S, 
118.) In the light of these facts, we wish to know 
whether the Congress, which proposed the change in 
Section 2, so that state governments outside a par¬ 
ticular state might give to the state government of 
that state new power to interfere with its citizens, 
understood that the Fifth Article was meant to enable 
Congress to originate any desired breach of the guar¬ 
antee in the Fourth Article. From our education, we 
know that, so long as any state has a republican form 
of government, its legislature can have no power to 
interfere with the individual freedom of the citizens 
of a state except by the grant and continued consent 
of those citizens themselves. We know that the citi¬ 
zens of each state, in 1776, gave its legislature power 
to interfere with their freedom in the matter which 
is the subject of the Eighteenth Amendment. We 
know that, then or at any time since then and now, the 
citizens of each state could take back that power so 
given. But, if the governments of thirty-six states out¬ 
side any given state, by the Second Section of the 


The Tory “Eighteenth Amendment” 251 

Eighteenth Amendment, have granted the legislature 
of that particular state a new and second power to 
interfere with the individual freedom of the citizens 
of that state, in the matter which is the subject of the 
Eighteenth Amendment, what has become of the re¬ 
publican form of government in that state? No repub¬ 
lican form of government ever exists where govern¬ 
ments, outside a state, give to its legislature any power 
to interfere with the individual freedom of its citi¬ 
zens. 

The case of Rhode Island or Connecticut makes our 
point clear, although the question is equally apt for 
any state, if the Eighteenth Amendment is in the Con¬ 
stitution. Neither the American citizens in Rhode 
Island nor the legislature of Rhode Island, which 
speaks only for its citizens and not for any citizens of 
America, have ever said “Yes” to the grant to the 
legislature of Rhode Island of this new power to inter¬ 
fere with the individual human freedom of the citizens 
of Rhode Island. The other power to interfere with 
that freedom, on the same subject, which the citizens 
of Rhode Island gave to their legislature, is a power 
which the citizens of Rhode Island can take back from 
that legislature at any time. But, if the Eighteenth 
Amendment is in the Constitution, the legislature of 
Rhode Island has a power to interfere with the citizens 
of Rhode Island in the exercise of their human free¬ 
dom, which power has been granted by governments 
outside of Rhode Island, and which power cannot be 
taken away from that legislature by the citizens of 
Rhode Island. 

We average Americans again ask whether the Con¬ 
gress, chosen to fulfill the guarantee of the Fourth 
Article, understood the meaning of the Fifth Article 


252 


Citizen or Subject? 


to be that it could suggest and originate any desired 
breach of that guarantee? 

In the second place, we would like to ask another 
question of the Congress which proposed that Second 
Section and of all who uphold the validity and the 
sanity of the Eighteenth Amendment. This other 
question Is about the two distinct powers, In relation 
to Prohibition, which the legislature of every state 
must have, if the Amendment Is in the Constitution? 
The question Is simple. When such legislature passes 
an act like the Mullan-Gage Law In New York, who 
determines which of the two distinct powers the state 
legislature exercises? Is It the power granted by the 
citizens of that state and revocable by them? Or Is 
it the power granted by governments outside that 
state, over which the citizens of that state have not 
the slightest control? The query is a pertinent one. 
It Is not beyond reasonable assumption that the citi¬ 
zens of New York may amend their state constitution 
and forbid their legislature to enact any statutes Inter¬ 
fering with the freedom of the citizens of New York, 
in any way, on the matter which Is the subject of the 
Eighteenth Amendment. Such a step on the part of 
the citizens of New York would be absolutely valid. 
It Is not forbidden even by the remarkable Eighteenth 
Amendment. Such a step would immediately deprive 
the legislature of the State of New York of any power 
from New York citizens to pass such law. Moreover, 
it would end that Law itself, if that Law was passed 
In the exercise of the power, in such matters, granted by 
the citizens of New York. If It were determined, how¬ 
ever, that the Mullan-Gage Law had been passed by 
the New York legislature in the exercise of power dele¬ 
gated to it by governments outside of New York, the 


The Tory “Eighteenth Amendment’’ 253 

Mullan-Gage Law would still remain a valid statute. 
This would mean, of course, that the republican form 
of government guaranteed to the citizens of New 
York, by the Fourth Article, had come absolutely to 
an end. Our particular query, at this point, is ob¬ 
viously one of considerable importance to us American 
citizens, each of whom happens to be also a citizen of 
some state to which the citizens of America made the 
guarantee of the Fourth Article and imposed on the 
very Congress, which originated the Eighteenth 
Amendment, the duty of having that guarantee ful¬ 
filled. 

There are other equally pertinent questions which 
we might ask about this unique Section 2 of the 
Eighteenth Amendment. We will leave them for the 
present, so that we may continue the story of the travel 
of the proposed new Article through the two Houses 
of the Congress which suggested that governments 
exercise and give government ability to exercise this 
new power over American citizens, not enumerated in 
the First Article. We come now to the days on which 
the House of Repreesntatives and the Senate discussed 
the Joint Resolution. In the recorded eloquence of the 
advocates of the proposal, we shall find much to re¬ 
mind us of the prevailing attitude in the British Par¬ 
liament toward us in 1775. But, in that eloquence, we 
shall look in vain for any echo of the Philadelphia of 
1787 or of the “conventions” in which Americans once 
assembled and gave their only government its only 
enumerated powers to interfere with their individual 
freedom. 


CHAPTER XVII 


THE TORY IN THE HOUSE 

‘‘T ET facts be submitted to a candid world.” They 
-L' have “combined with others to subject us to a 
jurisdiction foreign to our Constitution and unacknowl¬ 
edged by our laws; giving” their “assent to their acts 
of pretended legislation; . . . For . . . declar¬ 
ing themselves invested with power to legislate for us 
in all cases whatsoever.” 

It is doubtful if our Congress of 1917 ever read the 
above language. It is certain that such Congress, read¬ 
ing those words, would heed them just as little as all 
advocates of the supposed Eighteenth Amendment 
have heeded the express commands of the Americans 
who uttered those words. 

For the information of those who think that gov¬ 
ernments in America can validly make grants of 
national power, like those in the First Article and the 
Eighteenth Amendment, we state that the quoted 
words are from the complaint of the American people 
against their British Government on July 4, 1776. For 
their information, we also state that, on that famous 
July day, all Americans ceased forever to be “subjects” 
of any government or governments in the world. For 
their information, we also state that it will require 
more than a combination of our American government 
and the state governments to subject us American citi¬ 
zens to a jurisdiction foreign to our Constitution and 
unacknowledged by our laws, the jurisdiction of the 

254 


The Tory in the House 255 

state governments, none of which has aught to do with 
the citizens of America. 

It is a known legal fact, decisively settled in the 
Supreme Court, that the jurisdiction of the American 
government over the American citizen and the juris¬ 
diction of the state government over the state citizen 
are as distinct and foreign to each other as if the two 
citizens were two human beings and the territory of 
the state were outside of America. 

We have in our political system a government of the 
United States and a government of each of the several 
states. Each one of these governments is distinct from the 
other and has citizens of its own who owe it allegiance and 
whose rights, within its jurisdiction, it must protect. The 
same person may be, at the same time, a citizen of the 
United States and a citizen of a state, but his rights of 
citizenship under one of these governments will be different 
from those he has under the other. (Justice Waite in 
United States v. Cruikshank, 92 U. S. 542.) 

The two governments in each state stand in their re¬ 
spective spheres of action, in the same independent relation 
to each other, except in one particular, that they would if 
their authority embraced distinct territory. That parti¬ 
cular consists in the supremacy of the authority of the 
United States where any conflict arises between the two 
governments. (Justice Field in Tarble’s Case, 13 Wall. 
397.) 

In our Constitution all power ever granted to Inter¬ 
fere with the Individual freedom of American citizens 
Is vested in our only legislature, the Congress. That Is 
the opening statement of that Constitution In Its First 
Article, which enumerates all powers of that kind ever 
validly granted to that legislature. 

In our Constitution no power whatever over the 
citizens of America was ever granted to the states 


Citizen or Subject? 




256 

singly or collectively, or to the governments of the 
states singly or collectively. That all governments in 
America, including the Congress of 1917, might know 
that settled fact, it was stated with the utmost clarity 
in the Tenth Amendment to that Constitution. That 
Amendment, repeatedly held by the Supreme Court 
to be part of the original Constitution, is the clear 
declaration that no power of any kind over us, the 
citizens of America, is granted in that Constitution to 
any government save the government of America, and 
to it only the enumerated powers of that kind in the 
First Article. It is also the clear declaration that all 
powers to interfere with individual freedom, except the 
powers granted in the First Article to the American 
government and powers reserved to the citizens of 
each state respectively, to govern themselves, are re¬ 
served to the American citizens. 

Wherefore, now educated in the experience of the 
Americans who insisted on that declaration, we make 
exactly the same charge, against the Congress of 1917 
and all advocates of the Eighteenth Amendment, that 
was made by those Americans against their king who 
insisted that they were “subjects’^ of an omnipotent 
legislature. 

In December, 1917, the Congress knew that it could 
not make, to the citizens of America, the command 
which is Section l of the Eighteenth Amendment. By 
reason of that knowledge, that legislature—the only 
American one—^paid its tribute to the state legislative 
governments as collectively a supreme American Pan 
liament with exactly the same omnipotence over all 
Americans “as subjects” which the Americans of 1776 
denied to the British Parliament. 

Congress ought to have known that no government 


\ 

The Tory in the House 257 

except Congress can make any command on any subject 
to American citizens. It did know that Congress could 
not make the command of the new article to the Ameri¬ 
can citizen. Therefore It paid Its tribute to the state 
governments. It asked them, as competent grantors, 
to give It a new enumerated power to interfere with 
the Individual freedom of the American citizen. 

It Is history that those state governments, each with 
no jurisdiction whatever except over the citizens of Its 
own state, went through the farce of signing the re¬ 
quested grant In the name of the citizens of America. 
It Is law that those state governments are not the 
attorneys in fact of the citizens In America for any 
purpose whatever. It Is law that no governments 
have any power of attorney from the citizens of 
America to grant to any government a new enumerated 
ability to interfere with the Individual freedom of the 
American citizens. For which simple legal reason, the 
supposed grant of such a power, by government to 
government. In Section 2 of the Eighteenth Amend¬ 
ment, is a forgery. 

The supposed Volstead Act was enacted under this 
grant. It has met with the severest criticism. No one, 
however, has yet pointed out one particular fact to the 
careful thought of every average citizen of America. 
There are thousands of laws. Interfering with Indi¬ 
vidual freedom. In the statute books of the American 
nation and of the respective states. In one respect, 
however, this Volstead Act Is absolutely unique among 
statutes in America. It is the one law In America 
of that kind, the kind Interfering with Individual free¬ 
dom, which does not even pretend to be founded on a 
grant of authority directly from its citizens to the gov¬ 
ernment which passed it. It is the only law In America, 


Citizen or Subject? 


258 

directly interfering with human freedom, which was 
enacted under a grant of power made by government 
to government. It does not detract from this unique 
distinction that the American government requested 
the grant, and the state governments made it, and the 
American government acted under it, by passing the 
Volstead Act, all being carefully planned and accom¬ 
plished while millions of Americans were preparing to 
give and thousands of them did give their lives for the 
avowed purpose of securing human liberty from the 
oppression of government. 

When, in 1787, Americans at Philadelphia had 
worded our Constitution, Gerry, opening the short dis¬ 
cussion of its Fifth Article, made this important and 
accurate statement of fact: “This constitution is to be 
paramount to the state constitutions.” All American 
citizens know that each state legislature is the creature 
of its state constitution and absolutely subject to that 
constitution. We thus have clearly established that 
the American Constitution is paramount to all the state 
constitutions and that each state constitution is respec¬ 
tively paramount to the state legislature which it creates 
and controls. It remained for the Congress of 1917 
and all advocates of the Eighteenth Amendment to 
acquire and state and act upon the remarkable “knowl¬ 
edge” that those same state legislatures are paramount 
to everything in America, including the American Con¬ 
stitution, which is paramount to the state constitutions 
which created these very legislatures. That such was 
the unique knowledge of the Congress of 1917 is made 
clear by its request to those state governments to make 
the command of Section i to the citizens of America 
and to make the grant of Section 2 of power over the 
citizens of America. 


The Tory in the House 


259 


“We thought it wise to give both the Congress and 
the several states concurrent power to enforce this 
Article and let that power be set forth and granted in 
the Article we propose to submit.” 

So spoke Congressman Webb, introducing the pro¬ 
posed Eighteenth Amendment, exactly as it now reads, 
to the House of Representatives, on December 17, 
1917. This was the day on which that House dis¬ 
cussed and passed the Senate Joint Resolution 17, 
which proposed that Amendment and submitted it to 
governments to make it. Webb was a lawyer of renown 
and chairman of the Judiciary Committee and had en¬ 
tire charge of the passage of the Resolution in the 
House on behalf of those who had ordered the Ameri¬ 
can Congress to pass that Resolution. 

From one instance alone, we may immediately glean 
how clearly Webb and all leading supporters of the 
Eighteenth Amendment, in and out of Congress dur¬ 
ing the past five years, have shown an accurate “knowl¬ 
edge” of the basic principles of all government in 
America. We realize that such knowledge, if human 
liberty is to remain secure, is an essential qualification 
of leaders of a people once “better acquainted with the 
science of government than any other people in the 
world.” 

No sooner had Webb read the Section 2 and made 
his quoted statement' of its purpose than he was asked 
a pertinent and important question. The query was 
whether, if Congress and a state government each 
passed a law and they flatly conflicted, which law 
would control? Webb had made long preparation to 
carry out his purpose that the Eighteenth Amendment 
be inserted in the Constitution by government. He 
was prepared with his immediate response to that 


26o 


Citizen or Subject? 


ignorant question. His prompt answer was: “The 
one getting jurisdiction first, because both powers 
would be supreme and one supreme power would have 
no right to take the case away from another supreme 
power.” {Congressional Record^ Vol. 56, p. 424*) 
It is sad to relate that this lucid explanation of the 
manner in which two distinct supreme powers dictate 
to one “subject,” the American citizen, elicited the 
next query, “Does the gentleman say that as a law¬ 
yer?” With the charity that real intelligence displays 
to ignorance, Webb again explained the simple propo¬ 
sition of two distinct and supreme powers to command 
on exactly the same matter. We commend Webb’s 
American mental attitude, without the slightest Tory 
taint, and his mastery of American law, to all who ever 
wish to dictate to human beings as “subjects.” 

Fresh from our education in the experience of the 
earlier real Americans, we deem it proper to dwell for 
a moment further on that opening statement of Webb: 
“We thought it wise to give both the Congress and the 
several states concurrent power to enforce this Article 
and let that power be set forth and granted in the 
Article we propose to submit” to the state govern¬ 
ments. 

We recall vividly the statement of Lloyd George 
made only last year in the British Legislature. He 
was speaking of the proposed treaty with Ireland, then 
before that Legislature, and this is what he said, in 
substance. “The Parliament at Westminster [legis¬ 
lative government, not the people of the British 
Empire] is the source of every power in the British 
Empire.” It is our just tribute to Webb and every 
American who believes that the Eighteenth Amend¬ 
ment is in the Constitution, that they understand that 


The Tory in the House 1261; 

the American nation is founded and exists on exactly 
the same principle. They have all acted upon the one 
conviction that the state governments collectively are 
exactly the same as the Parliament at Westminster, 
are above the American Constitution and need obey no 
command in it, and are the legitimate source of any 
power to interfere with the individual freedom of the 
American citizen, on any matter whatsoever. 

On our part, probably blinded by our own education 
with the earlier Americans, we still believe that Webb 
and all who think with him are hopelessly ignorant of 
American law. We believe that they do not under¬ 
stand in the least the vital change in the status of the 
American individual, from “subject” to “citizen,” on 
July 4, 1776. 

We remember Marshall’s clear statement, in the 
Supreme Court, that, in the days when Americans 
“were better acquainted with the science of government 
than any other people in the world” and the First 
Article grants of power over them were requested, the 
legal “necessity of deriving those powers from them 
was felt and acknowledged by all.” We know that 
they made no change in the imperative nature of that 
necessity. We do not understand how that legal ne¬ 
cessity, during the past five years, has not been known 
to Webb and those of his Tory faith. 

We remember Marshall’s equally clear statement, 
again in the Supreme Court, that, when new grants of 
such power are wanted from its citizens by the Ameri¬ 
can government, there is only one way, in which those 
grants can be validly or “effectively” made, namely, 
by those citizens themselves, assembled in their “con¬ 
ventions.” It is true, the American citizens assem¬ 
bled in those conventions in their several states. “No 


262 


Citizen or Subject? 


political dreamer was ever wild enough to think of 
breaking down the lines which separate the states, and 
of compounding the American people Into one common 
mass” and of compelling them to assemble in one “con¬ 
vention,” when it is necessary for them to act, as 
possessors of exclusive ability to vest national power 
over them. 

Of consequence, when they act, they act in their states. 
But the measures they adopt do not, on that account, cease 
to be measures of the people themselves, or become the 
measures of the state governments. (M’Culloch v. Mary¬ 
land, 4 Wheat. 316.) 

We do not understand how Webb and those of his 
Tory faith have forgotten this legal fact, possibly the 
most Important in America to the liberty of its citizens. 

We remember how well this legal fact was once 
known to all Americans, how clearly the Americans In 
Virginia expressed it as the then knowledge of all 
Americans and their leaders. “The powers granted 
under the proposed Constitution are the gift of the 
people, and every power not granted thereby remains 
with them, and at their will.” (Resolution of the 
Americans In Virginia, ratifying the Constitution and 
making the grants of Its First Article, 3 Ell. Deb. 
653.) We do not understand how Webb and those of 
his Tory faith, speaking the language of Lord North 
in 1775 and of Lloyd George In 1922 as to the British 
Government of “subjects,” should translate the quoted 
accurate statement of American law Into, “The powers 
granted under the proposed Constitution are the gift of 
the people, but every power not granted therein re¬ 
mains with the collective state legislative governments 
and can be granted by those governments, without any 
action by the citizens of America themselves.” 


The Tory in the House 263 

We know that the Supreme Court, in 1907, did not 
so understand. 

The powers the people have given to the General Gov¬ 
ernment are named in the Constitution, [all in the First 
Article] and all not there named, either expressly or by 
implication, are reserved to the people and can be exer¬ 
cised only by them, or upon further grant from them. (Jus¬ 
tice Brewer in Turner v. Williams, 194 17. «S. 279.) 

We do not understand how Webb and those of his 
Tory faith could believe that one of those reserved 
powers could be exercised by the collective state gov¬ 
ernments, Section i of the new Amendment, or could 
be granted by those governments, Section 2. 

We remember that Madison, who worded the Fifth 
Article, and Hamilton, who seconded it at Phila¬ 
delphia, did not so believe but knew that such belief 
came in direct conflict with basic American law. “As 
the people are the only legitimate fountain of power, 
and it is from them that the constitutional charter, 
under which the several branches of government hold 
their power, is derived, it seems strictly consonant to 
the republican theory, to recur to the same original 
authority [the people themselves in “conventions”] 
whenever it may be necessary to enlarge, diminish, or 
new-model the powers of the government.” (Ham¬ 
ilton in The Federalist, No. 49.) “The fabric of 
American Empire ought to rest on the solid basis of 
the consent of the people. The streams of national 
power ought to flow immediately from that pure, 
original fountain of all legitimate authority.” (Ham¬ 
ilton in The Federalist, No. 22.) “The express 
authority of the people alone could give due validity 
to the Constitution.” (Madison in The Federalist, No. 


Citizen or Subject? 


264 

43.) “It is indispensable that the new Constitution 
should be ratified in the most unexceptionable form, 
by the supreme authority of the people themselves.” 
(Madison, at Philadelphia, 5 Ell. Deb. 158.) “The 
genius of republican liberty seems to demand on one 
side, not only that all power should be derived from 
the people, etc.” (Madison in The Federalist, No. 
37.) and “There is certainly great force in this reason¬ 
ing, and it must be allowed to prove that a constitu¬ 
tional road to the decision of the people ought to be 
marked out and kept open, for certain great and 
extraordinary occasions.” (Madison or Hamilton in 
The Federalist, No. 49.) 

We average Americans know that, in the Fifth 
Article, there is “marked out and kept open, for certain 
great and extraordinary occasions a constitutional road 
to the decision of the people^* when their own exclusive 
ability is alone competent to do what is deemed wise to 
be done. We know that the direct command to Ameri¬ 
can citizens, interfering with their individual freedom 
and contained in Section i of the new Amendment, was 
the first direct command of that kind ever attempted to 
be put in our Constitution. We know that the grant 
of power to make such commands, which is the grant 
of the second section of that Amendment, is the first 
and only grant of that kind ever supposedly made since 
1788. Knowing these undoubted facts, we cannot un¬ 
derstand why Webb and those of his Tory faith did 
not know that the request for the command of Section 
I and for the grant of Section 2 was “a great and 
extraordinary” event, and that only through the 
stitutional road for the decision of the people^* them¬ 
selves, “marked and kept open” in the Fifth Article, 
the assembling of the people themselves in their 


The Tory in the House 265 

“conventions,” could a valid command and a valid 
grant be achieved. 

The more we average Americans consider, however, 
the Congressional record of 1917 and the story of the 
subsequent five years, the more do we understand the 
curious mental attitude which has led Webb and those 
of his Tory faith, who believe that the new Amende 
ment is in the Constitution, to think that governments 
could make that command to and that grant of power 
over the citizens of America. Our consideration leads 
us to think that none, of these men have ever read or 
grasped the meaning of the words expressing a knowl¬ 
edge so often shown by our Supreme Court: 

The people who adopted the Constitution knew that in 
the nature of things they could not foresee all the questions 
which might arise in the future, all the circumstances 
which might call for the exercise of furtheV national powers 
than those granted to the United States, and after making 
provision for an Amendment to the Constitution by which 
any needed additional powers would be granted, they re¬ 
served to themselves all powers not so delegated. (Justice 
Brewer, Kansas v. Colorado, 206, U. S. 46 at p. 90.) 

We are sorely afraid that Webb and the Congress 
of 1917 and all upholders of the new Amendment have 
made exactly the same vital mistake which had been 
made, in that reported case, by the counsel who there 
represented the very same government which repeated 
the mistake in 1917* 

That counsel had contended for the proposition that 
there are “legislative powers affecting the nation as a 
whole [the citizens of America] which belong to, al¬ 
though not expressed in the grant of powers” in the 
First Article. The answer of the Supreme .Court was 
decisive on the mistake of that counsel and the mistake 


266 


Citizen or Subject? 


of the 1917 request from Congress to the state gov¬ 
ernments. The answer was that the proposition 

is in direct conflict with die doctrine that this is a gov¬ 
ernment of enumerated powers. That this is such a gov¬ 
ernment clearly appears from the Constitution, independ¬ 
ently of the Amendments, for otherwise there would be an 
instrument granting certain specified things made operative 
to grant other and distinct things. This natural construc¬ 
tion of the original body of the Constitution is made ab¬ 
solutely certain by the Tenth Amendment. This Amend¬ 
ment, which was seemingly adopted with prescience of just 
such contention as the present, disclosed the wide-spread 
fear that the National Government might, under the pres¬ 
sure of a supposed general welfare, attempt to exercise 
powers which had not been granted. With equal deter¬ 
mination the framers intended that no such assumption 
should ever find justification in the organic act, and that if 
in the future further powers seemed necessary, they should 
be granted by the people in the manner they had provided 
for amending that act. It reads: “The powers not delega¬ 
ted to the United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States respectively, 
or to the people.” The argument of counsel ignores the 
principal factor in this Article, to wit, “the people.” Its 
principal purpose was not a distribution of power between 
the United States and the States, but a reservation to the 
people of all powers not granted. The preamble of the 
Constitution declares who framed it,—“We, the people of 
the United States,” not the people of one State, but the 
people of all the States; and Article X reserves to the 
people of all the States the powers not delegated to the 
United States. The powers affecting the internal affairs 
of the States not granted to the United States by the Con¬ 
stitution, nor prohibited by it to the States, are reserved to 
the States respectively, and all powers of a national char¬ 
acter which are not delegated to the National Government 
by the Constitution are reserved to the people of the United 
States. (206 U. S. at p. 89.) 


The Tory in the House 


267 


We average Americans know, and Webb and those 
of his Tory faith cannot deny, that the power to make 
the command of Section i, the power purported to be 
granted in Section 2, are among the powers of which 
the Supreme Court speaks as reserved, not to the 
states, but to the people of America. We also know, 
and again they cannot deny, that only those, who have, 
can give, or grant. For which reason, we ask that 
they answer this question: How can the state govern¬ 
ments exercise or grant a power which was not re¬ 
served to the states but was reserved by the citizens of 
America to themselves? 

In asking this question we but echo the learned 
Pendleton’s question, in the Virginia convention of 
1788: “Who but the people can delegate powers? 
. . . What have the state governments to do with 
it?” (3 Ell. Deb. 37.) And we also but echo the 
question of Wilson, in the Pennsylvania convention of 
1787: “How comes it, sir, that these state govern¬ 
ments dictate to their superiors—to the majesty of the 
people?” (2 Ell. Deb. 444.) 

But we, the citizens of America, have a further 
charge, at this point, to make against Webb and all 
who claim that the new Amendment is in the Constitu¬ 
tion or that any governments could put it there. In 
the case of Kansas v. Colorado, supra, counsel for the 
government of America made a monumental error by 
displaying his ignorance of the most important factor 
in the Tenth Amendment, “the people” of America. 
By reason of that particular ignorance, he assumed that 
all power to interfere with the individual freedom of 
Americans, on every subject, must be vested in some 
government or governments. This was the Tory con¬ 
cept, accurately rebuked by the supreme judicial 


268 


Citizen or Subject? 


tribunal, knowing only American law based on the 
American concept of the relation of “citizens” to their 
servant government and not on the Tory concept of 
the relation of the master government to its “sub¬ 
jects.” He did not know what Cooley knew when he 
made his accurate statement that “There never was a 
written republican constitution which delegated to 
functionaries all the latent powers which He dormant 
in every nation and are boundless In extent and In¬ 
capable of definition,” {Constitutional Limitations, 
7th Ed., 1903, p. 69.) By reason of his Ignorance, he 
contended that government could command American 
citizens by Interfering with their individual freedom 
on a matter not enumerated In the First Article. His 
particular error. In that respect. Is repeated by Webb 
and all who uphold the validity of the command made 
in Section i of the new supposed Amendment. 

But they were not content with repeating his one 
monumental error. They have not only ignored the 
most Important factor In the Tenth Amendment, “the 
people.” They have also wholly Ignored the most 
important factor In the Fifth Article, the mention of 
the way In which the citizens of America made their 
only valid grants of power to Interfere with their in¬ 
dividual human freedom, the mention of the only way 
In which new grants of power of that kind can ever be 
constitutionally made, the assembling of those citizens 
in their “conventions” In their several states. So as¬ 
sembled In such “conventions,” they made all their 
grants In the First Article and then, In their Fifth 
Article, mentioned their own assembling In exactly 
similar conventions In the future and prescribed that 
a “Yes” from three fourths of those conventions would 
be the only valid signature of the citizens of America 


The Tory in the House 269 

to any new grant of a further enumerated power to 
interfere with their individual freedom. 

There never has been any other possible meaning to 
those words in the Fifth Article, “or by conventions 
in three fourths thereof.” To the Americans who 
worded that Article at Philadelphia and to the 
Americans who made that Article, assembled in just 
such “conventions” as are mentioned in words therein, 
that quoted phrase was the most important factor in 
the Fifth Article. To them, those quoted words 
therein were the complement of their most important 
factor in the Tenth Amendment, the reservation to 
themselves (“the people” or citizens of America) of 
every national power not delegated in the First Ar¬ 
ticle. Together, the two important factors were the 
command of the citizens of America that all national 
powers so reserved to themselves could be delegated 
only by themselves, assembled in their “conventions” 
—“by conventions in three fourths of” their states. 
We, who have lived through their education with 
them, realize this with certainty. Webb and those who 
believe with him know nothing about it. 

Recognizing that Congress had been given no power 
to make the command which is Section i of the new 
Amendment, they first asked the state governments 
to make that command to the citizens of America. This 
was an exact repetition of the error made by counsel 
in Kansas v. Colorado, supra. This was their ignoring 
of the most important factor in the Tenth Amendment. 
Then, that the display of their own ignorance should 
contain something original, they ignored the most im¬ 
portant factor in the Fifth Article and requested that 
a new power, reserved by the citizens of America to 
themselves, should be granted by the state govern- 


270 


Citizen or Subject? 


merits. Everything that they have said or done, during 
the last five years, is based on that ignoring of that 
most important factor in that particular Article. 

Indeed Webb himself made this very clear at the 
very opening of his appeal that Senate Resolution 
Number 17 be passed in the House on December 17, 
1917. He merely paused to make the lucid explana¬ 
tion of how two supreme powers act, and then went on 
to read the Fifth Article as it appears in his expurgated 
edition of our Constitution. This is the Fifth Article 
he read to our only legislature: 

“that Congress, whenever two thirds of both houses shall 
deem it necessary, shall propose amendments to this Con¬ 
stitution . . . which . . . shall be valid to all intents and 
purposes as part of this Constitution, when ratified by the 
legislatures of three fourths of the several states.” 

It is clear to us, who have followed the framing of 
that Article in Philadelphia in 1787, that the Ameri¬ 
cans who framed it there and the Americans who made 
it, in their later “conventions,” would not recognize 
their Fifth Article. In the expurgated edition, the 
most important factor in the real Fifth Article is not 
only ignored but is entirely missing. It has been 
stricken from the Article. We do not know who or¬ 
dered that it be stricken out. We recall with interest 
that, on September 15, 1787, at Philadelphia, Gerry, 
always a consistent Tory in mental attitude, moved 
that it be stricken out of the Article. We recall that 
his motion was defeated by a vote of 10 to i. Never¬ 
theless, when we come to read that Article, as Webb 
and his colleagues for the new Amendment know it, 
we find that they must have some other record of the 
vote on that old September 15, 1787, and of the later 
votes in the “conventions” of the citizens of America, 


The Tory in the House 


271 


We find that In the Fifth Article, as Webb and his col¬ 
leagues know it, there are no words “by conventions 
in three fourths of” the several states. We realize 
that this reading of his Fifth Article and the absence 
of those important words from it was no mere inad¬ 
vertence on the part of Webb. Clearly those words 
are not in his Fifth Article. Only a few moments after 
his reading of it, on December 17, 1917, he quoted 
with approval a statement, by some former Senator, 
that the American people have a “right to be heard 
in the forum of the state legislatures, where alone the 
question can be decided whether the national Constitu¬ 
tion shall be amended.” 

In view of these facts, we educated citizens of 
America have no difficulty in grasping the Tory mental 
attitude of Webb (and his colleagues for the new 
Amendment) that all constitutional protection for our 
individual freedom may be legally dispensed with at any 
time by government, if governments only get together 
and act jointly, as in the proposal and supposed adop¬ 
tion of the new Amendment entirely by governments. 
For the edification of Webb and those of his faith in 
that respect, we would like to inform them that all who 
believe that the new Amendment has been or can be 
put in the Constitution by governments, “seem to have 
lost sight of the people altogether in their reasonings 
on this subject; and to have viewed” our national and 
state governments, “not only as mutual rivals and 
enemies, but as uncontrolled by any common superior 
in their efforts to usurp the authorities of each other. 
These gentlemen must be here reminded of their error. 
They must be told that the ultimate authority, 
wherever the derivative may be found, resides in the 
people alone, and that it will not depend merely on 


272 


Citizen or Subject? 


the comparative ambition or address of the different 
governments, whether either, or which of them, will 
be able to enlarge its sphere of jurisdiction at the 
expense of the other.” {Fed. No. 4^0 It con- 
tributes not a little to the importance of the quoted 
statements that they were written by Madison, who 
also wrote the real Fifth Article. They are his warn¬ 
ing to the then “adversaries of the Constitution.” 
They serve well as our warning to the present adver¬ 
saries of our Constitution, who assume and have acted 
on the assumption that they can ignore its most im¬ 
portant factors whenever government desires to exer¬ 
cise or to grant a new power to interfere with our 
individual freedom, although we have not granted it 
but have reserved it to ourselves. 

We might continue somewhat indefinitely the story 
of Senate Joint Resolution 17 in the House of Repre¬ 
sentatives on that December day of its passage therein. 
We would find, however, what we have already seen 
of Webb and his colleagues there to be typical of all 
they have said and all that they knew of basic Ameri¬ 
can law. We cannot leave that House on that day, 
however, without some comment upon the final elo¬ 
quent appeal made by Webb at the close of his arduous 
labor to secure the passage of the Resolution. 

To those, who have any knowledge in the matter, it 
is well known that Christ preached the doctrine of free 
will and temperance, while Mohammed laid down the 
law of prohibition. With great curiosity, therefore, 
we have listened for years and still listen to the cease¬ 
less tirade coming from Christian churches where men 
style themselves American “Crusaders” and denounce, 
in no temperate language, all Americans who do not 
align themselves under the “Crescent” flag of Mo- 


The Tory in the House 


273 


hammed and respect his Mohammedan command 
embodied in the First Section of the Eighteenth 
Amendment. Our curiosity is not lessened by the fact 
that their denunciation of those, who flatly deny that 
the command itself is Christian, is always accompanied 
with an equally temperate denunciation of those who 
dare to question their Tory concept that governments 
in America can constitute new government of men. 

We have seen Webb, with a candor only equalled 
by ignorance, frankly array himself with those who 
believe the Tory concept, that the legislatures of the 
state citizens are “the only tribunal” in which the 
national part of the Constitution of the American citi¬ 
zens can be changed. To his credit, therefore, we find 
it a matter of record that, with equal candor, he 
frankly arrays himself under the “Crescent” flag of 
Mohammed and eloquently appeals to all other de^ 
votees “of the great Mohammed” in support of the 
Mohammedan and un-Christian precept embodied in 
the Eighteenth Amendment. That full justice may be 
done his eloquence and his candor, these are his own 
words on his immortal December 17, 1917: “During 
one of the great battles fought by Mohammed, the 
flag was shot from the ramparts. A daring and de¬ 
voted soldier immediately seized it with his right hand 
and held it back on the rampart. Immediately his 
right arm was shot off, but, never faltering, he seized 
the flag with his left hand and that, too, was instantly 
shot away whereupon with his bleeding stubs he held 
the emblem in its place until victory came. 

“With a zeal and a determination akin to that which 
animated this devotee of the great Mahomet, let us 
wage a ceaseless battle and never sheathe our swords 
until our constitutional amendment is firmly adopted 


274 


Citizen or Subject? 


and the white banner of real effective prohibition 
proudly floats over every courthouse and city hall 
throughout this, the greatest nation upon earth.” 
{Congressional Record^ Vol. 56, p. 469.) 


t 


CHAPTER XVIII 


THE TORY IN THE SENATE 

W HEN our present Constitution was before the 
people of America, waiting their approval or 
rejection, Madison and Hamilton published their 
series of essays, now known as The Federalist. It is 
not our intent to dwell upon the knowledge of Ameri¬ 
can basic law shown by these two men. Elsewhere 
our Supreme Court has paid its deserved tribute to 
The Federalist as an authority of the greatest weight 
in the meaning of our Constitution. At this moment, 
we desire to mention one remarkable quality which 
makes those essays unique among arguments written 
in the heat of a great political controversy. They were 
written to urge that human beings create a great nation 
and grant some enumerated powers to interfere with 
their own freedom. They were written when other 
great leaders were opposing that project with the ut¬ 
most ability and eloquence. These opponents, as is 
the custom with men in any heated controversy, de¬ 
nounced the project and its advocates. The abuse of 
both project and advocates has probably never been 
exceeded in America. Yet it is one remarkable quality 
of the arguments of Madison and Hamilton, in The 
Federalist^ that they themselves never leave the realm 
of reason and fact and law, or descend to irrelevant 
abuse of those who differ in opinion with them.- 

We, who have lived through the last five years 

275 


276 Citizen or Subject? 

in America, can truthfully say that the advocates of 
the new constitution of government, the Eighteenth 
Amendment, have made their essays and speeches and 
arguments notable for the same quality, by its utter 
absence. 

Because fact would interfere with the making of 
their new Constitution, they have changed fact. Be¬ 
cause law meant that government could not constitute 
their government of the people, they have stated law 
which has never been law in America since 1776. Be¬ 
cause reason would prevent the achievement of their 
purpose, they have appealed to irrelevant abuse of 
those who dared to differ in opinion with them. 

In view of these known facts, we average Americans 
shall not be surprised when we read the record of the 
Senate on its own proposal that government should 
exercise a power not delegated to interfere with indi¬ 
vidual freedom. Fresh from the reading of the record 
in the House, we shall not be surprised to find that 
the Senate also ignored the most important factors in 
the Tenth Amendment and the Fifth Article, “the 
people” in the one, and the mention of the people’s 
exclusive ability to make national Articles in the other. 

When his proposing Resolution came before the 
Senate on July 30, 1917, Senator Sheppard quickly 
made clear his mental attitude on the relation of gov¬ 
ernment to human beings. Whenever a sincere Tory 
has voiced himself on that matter, it has always been 
inevitable that he betray the thought that human be¬ 
ings are the assets of the State and not its constituent 
members. As Madison said, “We have all known the 
impious doctrine of the Old World, that people were 
made for kings and not kings for the people.” In the 
country or in the mind where that doctrine prevails, it 


The Tory in the Senate 277 

is held to be the right and the privilege of government 
to see that the people, like the other assets of the State, 
are kept in good condition so that all property of the 
State may have its greatest economic value in the 
market of the world. 

And so we find Sheppard, through all his opening 
support of the new constitution of government based 
on the Tory doctrine, making clear the necessity that 
our government keep that asset, which is the citizens 
of America, in good physical condition like any other 
machine that may be in America. 

“In an age of machinery and of business transac¬ 
tions on a scale more enormous and complicated than 
ever before, the clear eye, the quick brain and the 
steady nerve are imperatively demanded. Society to¬ 
day is more dependent upon the man at the machine 
than at any previous period. We are coming to under¬ 
stand that the engine of the body must have the same 
care as the engine of the aeroplane, the battleship, the 
railway train, the steamship or the automobile; that 
the trade in alcohol is a form of sabotage which the 
human machine cannot endure; that it is no more to be 
tolerated than would be the business of making and 
selling scrap iron to be dropped into the delicate and 
complex machinery of modern manufacture, transpor¬ 
tation and commerce.” {Congressional Record^ Vol. 

5 S> P- 5550 -) 

After this admirably accurate appreciation of the 
relation of our American government to the asset 
which is ourselves, Sheppard then proceeded to teach 
us (who have just lived through the education of the 
American human beings who made the Constitution) 
the real facts of that making, as he knows them. 

He is advocating that our only American govern- 


278 


Citizen or Subject? 


ment should ask the legislative governments of the 
states, which are not the governments of American 
citizens, directly to interfere with our individual free¬ 
dom and to grant to themselves and to our only govern¬ 
ment future power to interfere therewith on a matter 
not enumerated in the First Article. Naturally, as real 
fact would make manifest the absurdity of such pro¬ 
posal, he states that, when the Constitution was made, 
“by votes of the Southern States the power to amend 
the federal Constitution was vested in three fourths 
of the states.” Undoubtedly he meant us to under¬ 
stand that the Constitution (through whose real mak¬ 
ing we have just lived) was made by the states and 
that the Southern States granted to the legislatures 
of three fourths of the states the omnipotent ability 
over the human beings of America, which those human 
beings themselves had denied to the English king and 
his legislature. That he meant us so to understand 
we shall learn to a certainty in a moment. Meanwhile, 
let us note how inadvertently he states part of the 
truth, while omitting all reference to the part thereof 
which would make his own proposal the clear absurd¬ 
ity which it was. 

We note his reference to that part of the Fifth 
Article which mentions the ability of three fourths of 
the state legislatures to amend the federal Constitu¬ 
tion. Because we have lived through the days of the 
real American leaders, we recall that our Constitution 
is both federal and national and that state legislatures 
always had ability to make federal Articles and never 
had ability to make national ones. We also remember 
that those state legislatures were permitted, by the 
people who made our Constitution, to retain some of 
the ability they had and were given no new ability. 


The Tory in the Senate 279 

We also remember that the Fifth Article mentions 
their existing ability to maike federal Articles and pre¬ 
scribes, as the command of the people of America, that 
a “Yes” from three fourths of them shall validly make 
a change in the federal part of our dual Constitution. 
For which reason, with somewhat of amusement, we 
note Sheppard’s inadvertent accuracy of statement, 
when he says that three fourths of the state legisla¬ 
tures may amend the federal Constitution. With our 
knowledge, we do not care what he meant or intended 
that others should understand. We know that noth¬ 
ing has been more definitely settled in America, since 
1776, than that legislative governments never can 
make a national Article or change our national Con¬ 
stitution. 

We now come to that part of Sheppard’s oration 
in which he makes certain his remarkable “knowl¬ 
edge” that our Constitution was made by the states— 
which are political entities—and not by the people of 
America. With a complacency requisite in one who 
advocates that unique constitution of a new kind of 
government in America, government of the people by 
government without authority from the people, we 
find him quoting from Calhoun of 1833 the doctrine 
that the states made the Constitution. “In this com¬ 
pact they have stipulated, among other things, that 
it may be amended by three fourths of the states; that 
is, they have conceded to each other by compact the 
right to add new powers or to subtract old, by the 
consent of that proportion of the states, without re¬ 
quiring, as would otherwise have been the case, the 
consent of all.” {Congressional Record, Vol. 55 » P* 

The history of America from May 29, 1787, to 


28o 


Citizen or Subject? 


July 30, 1917, was clearly a sealed book to Sheppard 
of Texas on that later day. 

On May 30, 1787, at Philadelphia, Randolph of 
Virginia offered the three Resolutions, which proposed 
that the people of America create a nation and absorb 
into their national system the federal union which had 
been made by the states. The first resolution was to 
express the sentiment of the convention “that the union 
of states merely federal will not accomplish the ob¬ 
jects” ; the second was to express the sentiment that 
“no treaty or treaties among the whole or part of the 
states, as individual sovereignties, would be sufficient”; 
and the third was to express the sentiment “that a 
national government ought to be established, consisting 
of the supreme legislative, executive, and judiciary.” 

The work of that Philadelphia Convention was 
carried to a successful conclusion on the basis of those 
sentiments. When their proposed Constitution had 
been worded, it was sent to and made by the one peo¬ 
ple of America, not by the states. 

The Constitution of the United States was ordained 
and established, not by the states in their sovereign capaci¬ 
ties, but emphatically, as the Preamble of the Constitution 
declares, by the “people of the United States.” 

So declared Justice Story, from the Bench of the 
Supreme Court, as far back as the decision of Martin 
V. Hunter’s Lessee, i Wheat. 324. As Story was an 
associate of Marshall on that Supreme Court, and as 
he is recognized as one of the greatest exponents of 
our Constitution, we average Americans prefer his 
knowledge to that of Sheppard even when the latter 
does quote from Calhoun. Furthermore, in an un¬ 
broken line of decisions, extending over the entire 


The Tory in the Senate 


281 


period of more than a century of whose history Shep¬ 
pard knows naught, the Supreme Court has insistently 
proclaimed the same fact, namely, that the people of 
America—not the states—made our Constitution. 

It is no longer open to question that by the Constitution 
a nation was brought into being, and that that instrument 
was not merely operative to establish a closer union or 
league of States.” (Justice Brewer, in the Supreme Court, 
Kansas v. Colorado, 206 U. S. 46.) 

Indeed, many men before Sheppard have attempted 
to deny that fact. History, however, records no suc¬ 
cessful idenial. As Sheppard states, the words of 
Calhoun were from his reply to Webster in 1833. 
the history of a century, all a sealed book to Shep¬ 
pard, Haine also asserted, against Webster, the belief 
of Calhoun and Sheppard as to what were the facts 
of the making of our Constitution. We average 
Americans, in an earlier chapter herein, have read 
Webster’s statement as to what were the facts of 
that making. Having lived, ourselves, through the 
days when the Americans did make their own Con¬ 
stitution, we agree wholly with Webster and the Su¬ 
preme Court and know that the states had no part 
whatever in its actual making. Over fifty years ago, 
however, it became absolutely immaterial, except for 
academic purposes, what might be the personal beliefs 
of ourselves or Calhoun or Haine or Sheppard or 
Webster. Shortly after the middle of the last cen¬ 
tury, the Southern States, just as unwilling as Shep¬ 
pard in 1917 to accept the unalterable decision of the 
Supreme Court that our Constitution is not a compact 
between states, appealed to the only tribunal to which 
there is any appeal from that Court, the tribunal of 


282 


Citizen or Subject? 


civil war. Even Sheppard must know the result of 
Gettysburg, the surrender forever of any claim that 
the Constitution is a compact between the states. Even 
Sheppard must some time have heard the echo of 
Lincoln’s appeal, at Gettysburg, that government of 
the people, by them and for them, should not perish 
from the earth. Even Sheppard must recognize, 
whether or not he wish to do so, how successfully the 
American people, whose predecessors made the Con¬ 
stitution, answered that appeal of Lincoln and intend 
to keep our government a government of the people, 
by them and for them, instead of a Sheppard govern¬ 
ment of the people, by governments without authority 
from the people. 

We average Americans, however, do not question 
the wisdom of Sheppard in quoting the repudiated 
claim of Calhoun, so long as Sheppard and his col¬ 
leagues intended to continue their effort to impose 
upon us the new constitution of a new kind of Amer¬ 
ican government, which is their Eighteenth Amend¬ 
ment. If he and they were to find anywhere citations 
in support of the ability of governments in America 
to exercise and to grant undelegated power to inter¬ 
fere with human freedom, to what source could he 
or they go for such citations? Their proposition de¬ 
pended wholly for its validity upon the Tory concept 
of the relation of government to its assets and sub¬ 
jects, the people. And, in the five volumes of the 
records of the conventions of the Americans, in the 
two volumes of The Federalist, and in over two hun¬ 
dred volumes of American decisions in the Supreme 
Court, he and they knew that no single citation of 
authority could be found to support the idea that we 
Americans are “subjects” and not citizens. In the 


The Tory in the Senate 283 

face of such a situation, he and they had but a choice 
between the repudiated claims of Calhoun and Haine 
or the concepts of Lord North and his associates in 
the British Parliament of 1775. We average Amer¬ 
icans know what choice we would have made, under 
such circumstances. For which reason we are not sur¬ 
prised to find Sheppard, after his remarkable quo¬ 
tation from Calhoun, continuing on to say that the 
states “by reserving to themselves the unqualified and 
exclusive right of amendment kept intact their sov¬ 
ereign capacity in so far as the organic law of the 
nation was concerned.” {Congressional Record^ Vol. 

55 . P; SSS3-) 

With the Supreme Court, we have always known 
and we still know, despite Sheppard, that the people 
of America did all the reserving that was done and 
which the Tenth Amendment merely declared had been 
done. We note, with intent to remember, how clearly 
Sheppard demonstrated his total ignorance of the most 
important factor in that Tenth Amendment, “the peo¬ 
ple,” and of the most important factor in the Fifth 
Article, the mention of the reserved exclusive ability 
of the people themselves, assembled in their “conven¬ 
tions,” to amend or change or add any national Arti¬ 
cle in their Constitution. 

As we go on with his oration of that July day, we 
find him insisting, as we found the House insisting 
on a later day, that the states and their legislative 
governments are all the protection to our individual 
liberties which the American people were able to at¬ 
tain by the efforts of those remarkable years from 
1775 179^* Curiously enough, that insistence is 

mentioned in the same breath in which he' suggests 
that we, the citizens of America, have some rights. 


Citizen or Subject? 


284 

evidently in the nature of privileges which a govern¬ 
ment confers on its subjects. This is what he has to 
say: ‘‘In refusing the people the right to appeal to 
the only tribunal having power of amending, the tri¬ 
bunal of the states, for the redress of what they con¬ 
sider one of the most terrible grievances in the re¬ 
public, Congress would deny to them one of the most 
sacred of all rights, the right of petition.” 

Why should the supreme legislature not deny that 
right of petition to us, if the inferior state legisla¬ 
tures, who are not governments of the citizens of 
America, claim power to deny us any right they please, 
as they do by their supposed Eighteenth Amendment 
to our Constitution? 

But we waste time on this Sheppard. Let him say 
his own farewell to us; the citizens of America, in his 
closing words of July 30, 1917. As Webb, in the 
House, closed with his eloquent appeal to every true 
Mohammedan, we naturally find Sheppard closing 
with his appeal to whatever Tory sentiment believes 
that the same most important factor in the Tenth 
Amendment and the Fifth Article should be equally 
ignored. 

“At the close of this debate we will have an oppor¬ 
tunity to enable the states to exercise their highest 
function—the right to shape, alter, and develop the 
federal Constitution. They are the proper tribunal 
to decide the fate of this Amendment. They compose 
the mightiest array of free commonwealths united in 
a federated whole the world has ever seen. ... If 
there is anything in the Amendment subversive of 
their liberties and their welfare, they can be trusted 
to condemn it. Let not Congress assume to judge for 
them. Let Congress discharge its preliminary task 


The Tory in the Senate 285 

of submission and stand aside. Let it put in motion 
the referendum provided by the national organic law 
—the method of amendment the states themselves 
established when they created the Constitution. Let 
the states perform the duty which remains the sole 
instance of their sovereignty over the federal govern¬ 
ment itself.” {Congressional Record, Vol. 55, p. 

5554 -) 

If it were still 1833, if there never had been a 
Gettysburg or an Appomattox, could Calhoun himself 
have done better? If there never had been the Statute 
of 1776 or an American Revolution to make it the 
basic law of America, could any Tory peer in the 
Westminster Parliament of 1775 have been more 
zealous to see that the states themselves—which are 
mere political entities—should determine whether 
'there was anything iui the Eighteenth Amendment 
“subversive of their liberties and their welfare?” If 
there is, '‘Uhey can be trusted to condemn it.” Let our 
“Congress discharge its preliminary task of submission 
and stand aside.” What if there is anything in the 
Amendment subversive of our liberties and our wel¬ 
fare ? Why should we be trusted with the opportunity 
to condemn it, the opportunity which we reserved ex¬ 
clusively to ourselves by the most important factors 
in the Tenth Amendment and the Fifth Article? 

Why should we remember that Jefferson, also from 
a Southern State, penned the Statute of 1776 in which 
the American people commanded that no government 
acquire power over people except from people and 
not from governments? Why should we remember 
that Pendleton, also from the South, while actually 
engaged with all the rest of the American' people in 
making the First Article, referred to it and asked, “Who 


286 Citizen or Subject? 

but the people can delegate powers? What have the 
state governments to do with it ?” Why should we re¬ 
member that Wil?on, in the previous December, that 
of 1787, said of our Constitution, “Upon what prin¬ 
ciple is it contendedHhat the sovereign powers reside'^ 
in the state governments?' The proposed system sets 
out with a declaration that its existence depends upon 
the supreme authority of the people alone? How 
comes it, sir, that these state governments dictate to 
their superiors—to the majesty of the people ?” Why 
should we remember that Webster, answering Hayne 
and Calhoun, said, also speaking of our Constitution, 
“While the people choose to maintain it as it is— 
while they are satisfied with it, and refuse to change 
it—who has given, or who can give, to the state legis¬ 
latures a right to alter it, either by interference, con¬ 
struction, OR OTHERWISE? . . . Sir, the people have 
not trusted their safety, in regard to the general con¬ 
stitution, to these hands. They have required other 
security and taken other bonds.” (4 Ell. Deb. 508.) 

It is true that these earlier Americans have clearly 
in mind the most important factor in both the Tenth 
Amendment and the Fifth Article. But it must not 
be forgotten that Pendleton and Wilson and the 
Americans of that day, in making our Constitution, 
in constituting a new government and giving to it some 
powers over the freedom of human beings, were act¬ 
ing entirely outside any written law except the Statute 
of ’76. Is not their example a sound precedent for 
those who are now constituting a new government of 
Americans and giving it power over their freedom, 
for those who made the Eighteenth Amendment and 
those who upheld its validity? What if the makers 
of the new government are themselves government? 


The Tory in the Senate 


287 


If governments choose to act outside of all written 
law and to ignore that part thereof which is the im¬ 
portant factor of the Tenth Amendment and the Fifth 
Article, are these governments not emulating the ex¬ 
ample of the American people in 1787? True, these 
American people did act in strict conformity to the 
Statute of 1776, and this modern constitution of new 
government by government is not in conformity with 
that Statute. But was not that Statute itself the revolt 
of human beings against government? If human be¬ 
ings, by successful revolt against government, could 
change themselves from subjects to citizens, why can¬ 
not government, by successful revolt against human 
beings, change them from citizens to subjects? 

If, however, Sheppard and Webb and those of their 
Tory faith insist that the new constitution of govern¬ 
ment is in our Constitution, and put there validly, 
under claimed grant from us to state governments of 
omnipotence over American citizens, we, on our part, 
know that their claim is without the slightest support. 
Moreover, our knowledge in that respect is knowl¬ 
edge of indisputable legal fact. That the fact would 
be equally indisputable, even if our Constitution was 
a compact between states, as Calhoun did claim, and 
as Sheppard does claim, we can clearly demonstrate 
even to Sheppard himself. Our education with the 
earlier Americans, who changed their status from that 
of subject to citizen, has taught us all we need for 
that demonstration. 

Let us assume, what Sheppard asserts, that the 
states made the Constitution, that it is a compact be¬ 
tween states. Sheppard is a Texan. If our Constitu¬ 
tion is a compact between states, the State of Texas 
is one of the parties to that compact. We ask Shep- 


288 


Citizen or Subject? 


pard whether he and the other Texans are the State 
of Texas or whether the legislative government in 
Texas is the State of Texas? If he answers that the 
Texas legislature is the State of Texas, we proceed 
no further. That answer will be his frank confession 
that the Texan is a subject of the Texas government 
and not a citizen or member of the Texas State. 

On the other hand, if he answers that the human 
beings of Texas are the State of Texas, we do proceed 
further. We proceed along the most definitely settled 
legal principle in America. If the human beings in 
Texas are its citizens and constitute its State, the con¬ 
stitution of Texas is their creation and the legislature 
of Texas is the creature of that constitution. From 
the Texans, through the creation which is their con¬ 
stitution, that legislature derives its every power over 
the human beings in Texas and cannot have any such 
power except by grant from those human beings them¬ 
selves. That is the law of Texas, settled by hundreds 
of decisions in Texas and America. Now, if our 
American Constitution is a compact between the State 
of Texas—the human beings in Texas—and the other 
states—the human beings in the other states—how 
comes it that the mere creature of the Texans, with¬ 
out power over them except from them, can, by com¬ 
bination with other servant legislatures outside Texas, 
give to itself and to other governments outside Texas 
a new power to interfere with the freedom of the 
human beings in Texas? 

We are rather afraid that Sheppard and those of 
his faith, even assuming that our Constitution is a 
compact between states, have entirely overlooked the 
legal fact that a government is not the State in Amer¬ 
ica. We are rather afraid that they have reverted 


The Tory in the Senate 


289 


to what Madison called ‘ithe impious doctrine of the 
Old World,” namely, that the government is the State 
and the human beings are its asset and its property. 
We are rather afraid that they agreed with the con¬ 
cept of Louis of France, expressed in his famous “I 
am the State.” 

On no other basis can we explain their complete 
ignorance of the one important factor in the Tenth 
Amendment and the Fifth Article, “the people” of 
America, who, assembled in their “conventions,” as 
mentioned in the Fifth Article, are the citizens of 
America and compose the State or Nation of America. 

We average Americans, in the light of our educa¬ 
tion, reading the record of that July 30 in our Senate, 
would have thought, were it not for one fact, that 
every senator was using the expurgated edition of the 
Constitution, which Webb later used in the House, 
and which omits entirely from the Fifth Article the 
words, “by conventions in three fourths of” the states. 
Were it not for that one fact our thought would have 
been justified. We know that the proposition of 
Sheppard, embodied in his Senate Resolution No. 17, 
was that the proposed new Article should be referred 
to the tribunal of the state legislative governments. 
We know, and we have quoted his own statement, 
which is the basis of that knowledge, that he held 
that legislative tribunal to be “the only tribunal hav¬ 
ing power of amending” our Constitution. We know 
that he held this legislative tribunal to be “the proper 
tribunal to decide the fate of this Amendment.” We 
know his confidence that this legislative and govern¬ 
ment tribunal has “the right to shape, alter,,and de¬ 
velop” our Constitution, ordained and established by 
the citizens of America. His conviction, in this re- 


290 


Citizen or Subject? 


spect, is stamped indelibly on our mind, because it 
came in such sharp conflict with our knowledge that 
all Americans of an earlier day held that every national 
Article, like the First Article and the supposed Eigh¬ 
teenth Amendment, must be referred to that other 
tribunal, the only tribunal competent to make such 
Articles where men are citizens and not subjects, the 
tribunal of the American citizens themselves, the tri¬ 
bunal mentioned in the Fifth Article in the words “by 
conventions in three fourths of” the states in America. 

We know, therefore, inasmuch as neither Sheppard 
nor any senator but one apparently knew of the ex¬ 
istence of that other and supreme tribunal or of the 
presence of those words in the Fifth Article, that all 
senators save that one must have been using an expur¬ 
gated edition of the Fifth Article. 

On that July 30 we find Senator Ashurst making 
plain that he has our edition of our Constitution. He 
said, “When our federal Constitution was written in 
1787, two methods of amending were provided; and, 
unless I am mistaken, it was the first written consti¬ 
tution in history which provides for two methods of 
amendment.” This brief and simple mention of that 
significant fact, in relation to the Fifth Article, seems 
to have been the only cognizance of the fact itself, in 
the Senate of that day or in the entire subesquent his¬ 
tory of the Eighteenth Amendment, even in the great 
litigations about it in which were arrayed against one 
another the most renowned “constitutional” lawyers 
in America. So far as would appear from the Senate 
record, no knowledge of the amazingly important ef¬ 
fect of that Fifth Article mention of two distinct 
powers (one limited and then existing in government 
and the other unlimited and then and now existing in 


The Tory in the Senate 


291 


the American people) to make future Articles was 
acquired in the Senate or afterward, from the fact 
itself or from Ashurst’s allusion to the fact. 

Back at Philadelphia in 1787, Gerry, always Tory 
in his mental attitude to government and human being, 
realized fully the amazing importance of this Fifth 
Article mention of the two then existing powers to 
make Articles, the limited power of legislative gov¬ 
ernments to make federal Articles (which had made 
all the federal Articles of 1781) and the unlimited 
and exclusive power of the people themselves to make 
national Articles, which had been exercised to make 
the national Articles in each existing state constitu¬ 
tion, and which the Philadelphia Convention had al¬ 
ready ascertained and held was the only power com¬ 
petent to make such Articles as their own proposed 
First Article and the Eighteenth Amendment. While 
the Philadelphia Convention had been discussing and 
deciding that their proposed Constitution, because of 
its First Article, the r^al constitution of government, 
must be referred to the people, Gerry had always 
opposed that decision. He had always fought to 
have that First Article sent to government, to have 
its grants of power over the freedom of men made 
by government to government. When, therefore, the 
closing business day of that Convention was reached 
on September 15, 1787, he made his final and con¬ 
sistent Tory effort that citizens should be asked to 
make a Fifth Article which would change them back 
again to the subjects they had been in 1775. That 
effort was his motion of September 15 to strike from 
the Fifth Article, as we know it, the words “or by 
conventions in three fourths of” the states. He knew, 
as we know, by reason of our education with the Amer- 


292 


Citizen or Subject? 


leans who defeated his effort, that those words are 
the Fifth Article mention of the then existing only 
ability in America which then could or now can make 
such Articles as the original First Article or as the 
supposed Eighteenth Amendment. He knew, as we 
average Americans now know, that, only if such men¬ 
tion were stricken from that Fifth Article, could any 
future possible claim be made that legislative govern¬ 
ments have ability to exercise or to grant undelegated 
power to interfere with individual freedom. With 
the important object in mind, that he secure some 
foundation for such claim in the future, he made his 
motion to strike that mention of our exclusive power 
from that Fifth Article. As we average Americans 
know, his effort to have a convention even propose 
such a Fifth Article to “a people better acquainted 
with the science of government than any other people 
in the world” was beaten by the decisive vote of 10 
to I. 

The proposal of the Eighteenth Amendment by 
government to government was the attempt of our 
servant American government to reverse the result 
of that vote of September 15, 1787. The action of 
the state legislative governments in America upon 
that proposed Eighteenth Amendment was an action 
depending entirely for its validity upon a recount of 
that vote and the assumption that the convention did 
strike out that mention of our exclusive power to make 
national Articles and that the Fifth Article went to 
the American people and was made by them without 
that mention in it. For which very obvious reasons, 
we average Americans do not understand how the 
fact, to which Ashurst made brief allusion on July 30, 
was not the basis of every attack made in the 


The Tory in the Senate 


293 


Supreme Court by many of the most renowned “con¬ 
stitutional” lawyers in America, when they did assail 
the validity of that Eighteenth Amendment. 

It is difficult to pick out the one most remarkable 
thing in the complete story of the last five years. 
Yet we are inclined to believe that, from a certain 
point of view, the one most remarkable thing is the 
absolute failure of even one of those renowned law¬ 
yers to appreciate or know or mention the fact and 
its decisive effect upon the alleged validity of the 
Amendment they challenged, the fact that the Fifth 
Article does name two future makers of Articles, the 
governments which could and did make the federal 
Articles of 1781, but which neither could nor did 
make the First Article of 1787 or the Eighteenth 
Amendment of 1917, and the citizens of America, 
who could and did make the First Article of 1787 
and who alone can make but have not made the Eigh¬ 
teenth Amendment. 

Even Ashurst seems to have known that it was 
remarkable, unique in history, for the Fifth Article 
to name two different makers of future Articles. It 
is amazing that the imperative reason for this naming 
of two makers, distinct and different in their ability 
to make, never suggested itself to any of the renowned 
lawyers of 1920, even though they knew the dual 
nature, national and federal^ of our Constitution. It 
is amazing when we realize that the Supreme Court, 
in 1819, had stated, as an obvious thing, that, when 
the First Article (granting power to interfere with 
the freedom of men) was proposed, the legal “neces¬ 
sity of referring it to the people, and of deriving its 
powers directly from them^ was felt and acknowledged 
by all.” It is amazing when the same Supreme Court 


294 


Citizen or Subject? 


in 1907 had authoritatively repeated that statement: 
“The powers the people have given to the general 
government are named in the Constitution, and all 
not there named, either expressly or by implication, 
are reserved to the people and can be exercised only 
by them or upon further grant from them.” 

However, we average Americans, still pursuing the 
history of America to learn when we again became 
^‘subjects,” will later herein consider the litigation 
about the Eighteenth Amendment. So far as the 
Senate is concerned, we leave it on December 18, 
1917, the day on which it finally proposed that legis¬ 
lative governments make the Eighteenth Amendment, 
whose Second Section was exactly of the same nature 
• as the First Article, namely, an Article of the kind 
which the Philadelphia Convention of 1787 had 
known never could be made by legislative govern¬ 
ments in America. In that Senate, as in the House, 
the public record discloses no American who did not 
ignore the most important factor in the Tenth Amend¬ 
ment and the Fifth Article, no American who knew 
the legal necessity of deriving, directly from the peo¬ 
ple themselves, every power to interfere with the indi¬ 
vidual freedom of the people. 

So far as history tells the tale, in the legislatures 
of the states, that legal necessity was “known and ac¬ 
knowledged” by none. There were many therein, as 
there were many in the later court litigations, who 
opposed the making on the ground of its unwisdom. 
There were also many, again as in the later litiga¬ 
tions, who contended that there should be no interfer¬ 
ence with the freedom of American citizens, as such, 
except on the matters enumerated in the First Article. 
But, neither in our own American legislature nor in 


The Tory in the Senate 295 

these state legislatures, as in the later litigations, was 
there one who knew the only legal and maintainable 
ground for that belief, the legal fact, as the Phila¬ 
delphia Convention found it, that only the American 
people could validly grant government power to inter¬ 
fere with their individual freedom, and the legal fact 
that the American people, constituting their govern¬ 
ment, kept the legal situation, in that respect, exactly 
as the Philadelphia Convention found it, by the most 
important factors in the Tenth Amendment and the 
Fifth Article. 

The amazing haste with which the ratifying legisla¬ 
tures exercised, for the first time in America, this imag¬ 
inary power to interfere with the individual freedom 
of the American citizens is a matter of history. The 
manner in which that legislative exercise of imaginary 
government power over subjects was secured in many 
states is something with which we are all familiar. We 
desire, however, to emulate the example set by Mad¬ 
ison and Hamilton in The Federalist, so far as judg¬ 
ment can restrain the honest indignation of citizens, 
when government undertakes to make them “subjects.’’ 
Therefore we leave it entirely to those who uphold 
the validity of the supposed new Amendment to sub¬ 
stitute irrelevant matter, mostly personal abuse that 
is harmless in view of its source, for the sound legal 
arguments in support of validity, which they can never 
find until the Statute of ’76 is repealed and our con¬ 
stitutions of government are so changed that we cease 
to be citizens and become the subjects our ancestors 
were in 1775* 

For those who would like to look upon all American 
governments as model exemplars of American’ respect 
for American law and American constitutions, the date 


Citizen or Subject? 


296 

of the proposal in December, 1917, and the quickness 
of ratification and the manner in which ratification was 
largely secured, are all matters most unpleasant to 
contemplate. Even now the most sincere advocate of 
the new Amendment never speaks of it without un¬ 
wittingly showing his chagrin at the general knowledge 
that it was proposed and passed by governments when 
millions of the citizens of those governments were 
fighting and were armed to fight for human liberty, 
and that even governments would never have dared 
to pass it except at that particular time. 

These facts, however, reflect only on the virtue of 
the Amendment. They have no bearing upon its 
validity. We average Americans are interested now 
only in that claimed validity. We know that, if it is 
valid, we have become subjects, that we are no longer 
citizens. We are seeking to find out when and how 
that change was made in our relation to all govern¬ 
ments in America. Beginning on July 4, 1776, we 
have come down to December 18, 1917. We have 
found ourselves, on that day, still citizens. We know 
that our servant legislature at Washington made a 
proposal on that day, which was legally absurd, unless 
we had already become subjects. We have listened 
carefully to what they had to say, in support of that 
proposal, and have ascertained that they neither knew 
nor understood the most important factor in our Tenth 
Amendment and Fifth Article, by which our ances¬ 
tors kept their own and our status as citizens. We 
know that the state legislatures could not change that 
status. Therefore we now simply note the fact that, 
in 1918, some of them ratified the proposal on the 
basis that all of us were their subjects. We know 
that our own government at Washington has acted, 


The Tory in the Senate 297 

whenever it felt disposed to enforce the supposed 
new command against us and not to disobey it openly 
itself, as if we zvere the subjects of those ratifying 
legislatures. 

We know also that in 1920, after more than a year 
of exhaustive study of our history and our Constitu¬ 
tion and our laws by hundreds of our most eminent 
lawyers, all working for one object, the legal demon¬ 
stration of the invalidity of the new Amendment, a 
chosen number of the most renowned “constitutional” 
lawyers in America appeared in the Supreme Court 
and orally argued against validity and filed the briefs 
against validity which were the result of this concen¬ 
trated effort. We know also that, in that court, on 
behalf of our own government and on behalf of those 
other governments which that government has pro¬ 
claimed to be the supreme dictator in America, there 
also appeared another chosen array of the most re¬ 
nowned “constitutional” lawyers, in the forefront be¬ 
ing a former justice of that court, now the American 
Secretary of State. This latter array appeared to 
demonstrate how and when, since 1790, our own status 
was changed from citizen to subject and the collective 
legislatures of some of the states were substituted for 
ourselves as possessors of the supreme constitutional 
will in America. 

We average Americans, therefore, to complete our 
education, now turn to the arguments of these lawyers 
and to their briefs, with somewhat of chagrin at our 
own unaided ability to ascertain the “when” and 
“how” we became subjects and oiir Constitution, in its 
national Articles and aspect, became the creature of 
legislative governments, although the American peo¬ 
ple originally created it to be the master of all gov¬ 
ernments. 


CHAPTER XIX 


ARE WE CITIZENS? 

establishment of a Constitution, in time of 
-■* profound peace, by the voluntary consent of a 
whole people, is a prodigy.” {Fed. No. 85). 'Those 
were the words of Hamilton, in a final appeal to the 
people of America, as they were about to assemble in 
their “conventions.” 

As he thought it a prodigy that their voluntary 
consent should be secured to that constitution of gov¬ 
ernment contained in the First Article, he frankly 
added that he looked forward “with trembling anx¬ 
iety” to their own determination as to whether or not 
they would give that necessary consent to the enumer¬ 
ated grants in that First Article. We know how the 
patriotic efforts of himself and Madison and his other 
colleagues were later rewarded by the giving of that 
consent. We know where those average Americans 
of that day gave that consent, where they made that 
constitution of their national government which is that 
First Article. “It is true, they assembled in their 
several states—and where else should they have as¬ 
sembled? No political dreamer was ever wild enough 
to think of breaking down the lines which separate 
the states, and of compounding the American people 
into one common mass. Of consequence, when they 
act, they act in their states. But the measures they 
adopt do not, on that account, cease to be the measures 

298 


Are We Citizens? 


299 

of the people themselves, or become the measures of 
the state governments!^ 

In the many other Supreme Court decisions, telling 
the tale of the completion of the “prodigy” and all 
stating the same legal fact, is there a more apt and 
accurate expression of the knowledge of the American 
people, who were better acquainted “with the science 
of government than any other people In the world,” 
that the “conventions” in the respective states, assem¬ 
bled to constitute their American government by 
grants like those In the First Article and the Eigh¬ 
teenth Amendment, are the Americans themselves and 
that the state governments never are the American 
people themselves and never represent those people 
for national purposes. It was natural that such apt 
and accurate expression of that concept should have 
been voiced by Marshall In the Supreme Court. He 
had been one of those people, fighting on the battle¬ 
field with them to wrest from all governments In the 
world any ability to constitute government by making 
grants like those In the First Article or the Eighteenth 
Amendment. He had been one of those people in one 
of those ^‘conventions^” In their respective states, 
where they made the only Article of that kind which 
ever entered their and our national American Consti¬ 
tution. Later it became his privilege and duty {and 
our great good fortune) to explain who alone could 
make and did make that First Article and who alone 
can ever validly make Articles like it or the Eighteenth 
Amendment, namely, the American people themselves, 
assembled In convention In their respective states. 

When, therefore, we read the Fifth Article, made 
by him and his fellow Americans In those “conven¬ 
tions,” we recognize at once and we will never forget 


300 


Citizen or Subject? 


or Ignore their mention of themselves, in the very word 
by which he and they then described themselves, “con¬ 
ventions” in their respective states. 

In making the Eighteenth Amendment grant of 
power to interfere with American freedom, we—the 
American citizens and “conventions” of this genera¬ 
tion—have been ignored as completely as if we were 
not named in the Fifth Article. 

We have been trying to ascertain “when” and 
“how” the American human beings, now ourselves, 
ceased to be “citizens of America” and again became 
“subjects” of governments. We have gone to the 
record of our Congress on those days in 1917, in 
which it acted on the assumption that the “when” and 
'“how” were already history. We have found no 
Senator or Congressman who vouchsafed any infor¬ 
mation or displayed any knowledge of this matter, so 
vitally important to us who were born citizens and 
free men. We have seen the leader of the House 
advocates of the new constitution of government, the 
Eighteenth Amendment, read a Fifth Article in which 
the “conventions” of those who made it and the First 
Article are not mentioned. We have seen the leader 
of the same advocates in the Senate complacently as¬ 
sert the repudiated thought that the states made the 
First Article, our constitution of our government. We 
have seen him follow up this error with the Tory mis¬ 
take of assuming that the government of the state is 
the state. We have seen him point out, to our Amer¬ 
ican amazement, the remarkable and hitherto un¬ 
known fact, never mentioned by the people who made 
the Fifth Article, that the state governments are the 
only tribunal in which our national constitution of 
government can be changed, that those governments 


Are We Citizens? 


301 


are a tribunal in which new enumerated power can be 
given by government to government to interfere with 
our own individual freedom. 

Fresh from our education with the Americans who 
made that Fifth Article In “conventions” of the very 
kind mentioned therein, we see that those legislators 
of 1917 know naught of American history or law or 
constitution of government of men, that from them 
we cannot learn “when” or “how” we ceased to be 
“citizens” and became “subjects.” But, there assem¬ 
bled in the Supreme Court in March, 1920, many re¬ 
nowned “constitutional” lawyers. Some came to chal¬ 
lenge, some to uphold the new Amendment, the new 
government-made constitution of government right to 
interfere with individual human freedom. 

To the reading of all their briefs and arguments we 
bring our knowledge that the new Amendment never 
entered our Constitution unless we were “subjects” 
before 1917 or unless the new Amendment was Itself 
a revolution (by government against citizens) which 
made us “subjects.” 

We expect the lawyers against the new Amendment 
to challenge Its existence with the facts and knowledge 
we bring from our education with the Americans who 
made themselves free men and citizens. 

We expect the lawyers for the new Amendment to 
point out the day and the manner In which they claim 
that government of the American people by the Amer¬ 
ican people did disappear from America. 

Unless these lawyers for the Amendment do point 
out that day and manner and sustain their claim as to 
both, we know that the existence of the new Amend¬ 
ment Is successfully challenged by the facts which we 
have acquired in our education. Before we listen to 


302 


Citizen or Subject? 


the expositions of these facts by the lawyers against 
the new Amendment, let us briefly review the facts 
themselves as they bear upon the supposed existence 
of the new Amendment. 

When 1776 opened, the American people were sub¬ 
jects in rebellion against their omnipotent government. 
By direct action of themselves, in July, 1776, they 
made themselves free men, made their former colonies 
independent states and made each of themselves a 
citizen of some one of those states. Almost imme¬ 
diately, the Statute of ’76 having declared the actual 
fact that the supreme will in America was possessed 
by the American people, at their suggestion and with 
their permission, the citizens of each state constituted 
their own government with its national powers to 
interfere with the individual freedom of its own citi¬ 
zens. In strict conformity to the Statute of ’76 and 
to the sole American concept of the relation between 
government and human being, those grants of power 
to interfere with individual freedom, like every other 
grant of that kind until the Eighteenth Amendment, 
were made by the respective citizens to their respective 
governments. 

In 1777 the committee of the American people 
known as the Second Continental Congress proposed 
a union of states or political entities and a general 
government to govern states but not to interfere di¬ 
rectly with the human freedom of the individual. Be¬ 
cause there is a vital distinction between the ability to 
govern states and the ability to interfere with indi¬ 
vidual freedom, those Americans knew that states or 
political entities could make federal Articles but that 
only citizens could ever validly make national Ardcles. 
It was impossible for these Americans not to know 


Are We Citizens? 


303 


this difference between the respective abilities of states 
and citizens of America. Their Statute of ’76 had 
declared this sole American concept of the law con¬ 
trolling the relation of government to human being. 
They were actually engaged in their Revolutionary 
War for the very purpose of making it forever Amer¬ 
ican law that no governments could ever grant national 
power in any matter. Because, therefore, the pro¬ 
posed Articles of 1777 were only federal Articles with 
grants of federal power, it was “felt and acknowledged 
by all” that the state legislatures were competent to 
make those Articles. So we recall, with intent to re¬ 
member, that those federal Articles were made in the 
exercise of that legislative government ability to make 
federal Articles, which is mentioned in our own Fifth 
Article. 

In 1787, from the same Philadelphia, there came 
the proposal that the American people, collectively 
the possessors of the supreme will in America, create 
a new nation, with themselves as its members or citi¬ 
zens and, as its members, constitute its government 
with national powers to interfere with their own indi¬ 
vidual freedom. Because the legal necessity of deriv¬ 
ing powers of that kind from the people themselves 
was “felt and acknowledged by all,” the inevitable 
legal decision was reached at Philadelphia that the 
existing ability of legislative governments to make 
federal Articles neither then did nor ever could include 
the ability to make national Articles like the First 
Article and the supposed Eighteenth Amendment. By 
reason of that legal necessity and its then recognition 
by all, because the First Article contained grants of 
national power, “by the convention, by Congress, and 
by the state legislatures, the instrument was submitted 


304 


Citizen or Subject? 


to the people. They acted upon it in the only manner 
in which they can act safely, effectively, and wisely on 
such a subject, by assembling in convention.” The 
reasoning and the decision itself were embodied in 
Article VII and in the Resolution which went from 
Philadelphia with the proposed seven Articles, includ¬ 
ing the Fifth Article. 

As the Supreme Court has definitely settled, the 
Tenth Amendment merely declares what was in that 
original proposed Constitution. Therefore the Con¬ 
stitution gave no new government ability anywhere 
except to the government at Washington. It gave to 
that government only specific ability to govern human 
beings, in certain matters. It merely reserved to each 
state government some of its former ability to govern 
its own citizens. It gave neither to any state govern¬ 
ment nor to all state governments collectively any new 
ability to govern. And it reserved to the American 
people themselves all ability to exercise or to grant 
any national power to interfere with the freedom of 
American citizens except those enumerated powers in 
the First Article. The Supreme Court has definitely 
settled that this reservation of such power exclusively 
to themselves, by the makers of the Fifth Article, is 
the most important factor in our constitutional dis¬ 
tribution of that kind of power among our American 
government, our state governments and, most impor¬ 
tant of all, ourselves, the citizens of America. For 
which reason, until this generation, it has always been 
axiomatic that the mention of that exclusive ability of 
our own, “conventions” of Americans in their respec¬ 
tive states, is the most important factor in the Fifth 
Article. 

In strict conformity with the Statute of ’76 and 


Are We Citizens? 


30s 


without usurping the reserved powers of the most im¬ 
portant factor in both the Tenth Amendment and the 
Fifth Article, seventeen federal changes were made, 
between 1789 and 1917, in the federal part of our 
Constitution, which is both a federal and a national 
Constitution. The situation in 1917 was exactly the 
same as it had been since July 4, 1776, when it was 
known even to the humble townsmen of Concord that 
governments could not make national Articles in Amer¬ 
ican constitutions. Or rather, the situation in 1917 
was the same unless, somewhere prior to 1917, the 
Statute of ’76 had been repealed and the most impor¬ 
tant factor in both Articles had been eliminated from 
the Fifth Article and Tenth Amendment of the Amer¬ 
ican Constitution, which is the security of the Amer¬ 
ican citizen against usurpation of power even by gov¬ 
ernments in America. 

We know that Gerry moved to strike that impor¬ 
tant factor from the Fifth Article in September, 1789, 
and that he failed in his effort. We know that Webb 
and the legislative advocates of the new Eighteenth 
Amendment had a Fifth Article in which that most 
important factor was not present. Apparently they 
based their government proposal and government rati¬ 
fication of the Eighteenth Amendment upon a Fifth 
Article which did not contain that most important 
factor, the reference of the makers of the Fifth Arti¬ 
cle to themselves as the makers of all future Articles 
of a national kind, the reference of those makers to 
themselves in the words “conventions” of the Amer¬ 
ican people, assembled in their respective states. 

Keeping all these settled facts clearly in our minds, 
we now take up the arguments and the briefs in which, 
in March, 1920, the constitutional lawyers of Amer- 


3 o6 Citizen or Subject? 

ica, who disputed the presence of the new Amendment 
in our Constitution, should have presented these irre¬ 
sistible facts. Then we shall take up the arguments 
and briefs of those other renowned lawyers in which 
they presented those other facts (still unknown to us 
average Americans) which can alone refute our knowl¬ 
edge that the new Amendment never went into our 
Constitution, because we are still citizens and govern¬ 
ments are yet unable to create government power to 
interfere with our individual freedom. 


CHAPTER XX 


LEST WE FORGET 

important distinction so well understood in 
America, between a Constitution established by 
the people and unalterable by the government, and a 
law established by the government and alterable by the 
government, seems to have been little understood and 
less observed in any other country. . . . Even in 
Great Britain, where the principles of political and 
civil liberty have been most discussed, and where we 
hear most of the rights of the Constitution, it is main¬ 
tained that the authority of the Parliament is tran¬ 
scendent and uncontrollable, as well with regard to the 
Constitution, as the ordinary objects of legislative 
provision. They [the legislature] have accordingly, in 
several instances, actually changed, by legislative acts, 
some of the most fundamental Articles of the govern¬ 
ment.” {Fed. No. 53.) 

Coming from Madison or Hamilton, this is the best 
kind of testimony that the earlier Americans, who 
established that constitution of government which is 
the First Article, knew that it was “unalterable by 
government.” And it is the best kind of testimony 
that the same American makers of the Madison Fifth 
Article knew that it did not grant to state governments 
any ability to add to or subtract from the First Article 
enumerated and constituted powers in government to 
interfere with the freedom of American citizens. If 

307 


Citizen or Subject? 


308 

Madison and Hamilton had been with us in our Con¬ 
gress of 1917, their statement would have been slightly 
altered. They would have spoken of “the important 
distinction so well understood in America” in 1787, as 
one which “seems to have been little understood and 
less observed in any other country” and not known or 
observed at all by our Senators or Congressmen of 
1917. 

The Americans of 1787, who “so well understood” 
the important distinction, made their knowledge a 
noticeable thing in the language of their Statute of ’76 
and of their Constitution. With their knowledge of 
the important distinction, they permitted the respec¬ 
tive states, through the respective legislatures thereof, 
to constitute the government of states, to make the 
federal Articles of 1781. With their knowledge of the 
important distinction and in deference to their own 
clear Statute of ’76, these intelligent Americans re¬ 
fused to permit the states or the legislatures of the 
states to establish the government of men, to make the 
national Article—the First Article—which is the con¬ 
stitution of government power to interfere with indi¬ 
vidual human freedom. Moreover, by their knowledge 
of the important distinction and of the Statute, they 
knew that Constitution, that enumerated grant of na¬ 
tional power over themselves, to be “unalterable by 
government.” And that we and all later Americans 
might also know it, they, the American people or “con¬ 
ventions” of that day, insisted that the Tenth Amend¬ 
ment expressly declare that they, those “conventions” 
of the American people, reserved to themselves and 
their posterity, the “conventions” of any later day, 
exclusive ability to alter that constitution of national 
power, the First Article. And, for the same purpose, 


Lest We Forget 


309 


they, the “conventions,” mentioned themselves, the 
particular reservee of the exclusive ability to alter that 
grant of national power, in one particular earlier part 
of the Articles they made, the part we know as the 
Fifth Article. Naturally, the two men, who worded 
that Article at Philadelphia and who paid its later 
makers the deserved tribute to their knowledge of 
the important distinction, mentioned those makers, 
“conventions,” in that Fifth Article as future makers 
of all grants of national power and mentioned the 
legislatures, in the Fifth Article, as competent future 
makers of Articles that do not constitute new national 
government. 

Because we have lived through the experience of the 
Americans to whom the tribute was paid, we know the 
distinction between a constitution of national govern¬ 
ment, “unalterable by government,” and Articles con¬ 
stituting government of political entities or states, 
alterable by the states or the legislatures of the states. 
Moreover, by reason of our experience, we sense the 
clear recognition of the distinction in the Fifth Article 
distinct mention of the people or “conventions,” as sole 
makers of national Articles, and the similar mention 
of the “legislatures” as competent makers of federal 
Articles. To our regret, we have found that our 
Congress, in 1917, knew naught of the distinction and 
naught of its recognition in the language of the Tenth 
Amendment and the Fifth Article. It is with relief, 
therefore, that we turn to the great litigations in the 
Supreme Court of 1920, in which the lawyers of the 
America, where the important distinction was once so 
clearly known, attacked and defended the proposal 
from the Congress of 1917 and the action of the state 
legislatures on that proposal. Fresh from the utter 


310 


Citizen or Subject? 


legislative Ignorance of that distinction, It Is with relief 
that, in our first glance at the briefs of those lawyers, 
we find what seems the clear echo of the accurate 
knowledge we have acquired In the company of those 
earlier Americans. 

“There Is only one great muniment of our liberty 
which can never be amended, revoked or withdrawn— 
the Declaration of Independence. In this regard. It 
ranks with the Magna Charta.” 

The clear tribute to the unrepealed Statute of ’76 
excuses, while it does not explain, the error of the 
allusion to Magna Charta. Graduate students of the 
history of the advance of Americans from subjects to 
free men, we average citizens grasp the error of the 
statement, “In this regard [that neither can ever be 
revoked] the Statute of ’76 ranks with the Magna 
Charta.” We know that the Statute was the revoca¬ 
tion of the basic doctrine on which Magna Charta 
rested. Magna Charta was the grant of privilege 
from an omnipotent government to Its subjects. All 
that subjects ever have are the revocable privileges 
granted by the master government. The Statute of 
’76 states the basic American law that there are no 
subjects In America, that the human members of any 
political society or state or nation, except as they 
directly grant power over some of their human rights 
to secure enjoyment of the rest, need obey the com¬ 
mand of no one except Him who gave them their 
human rights. In a free nation, such as the earlier 
Americans made of themselves, no man has any privi¬ 
leges granted by a master government. In a free 
nation, citizens or members of the society (and the 
supreme will therein) have their servant governments 
to which those citizens give whatever national powers 


Lest We Forget 


311 


those governments ever have. Except for the grants 
of such power which those citizens so make, the human 
beings retain, not as a gift or privilege of government 
but as the gift of Him Who created them, all human 
freedom of action. As citizens^ they also possess the 
particular privileges which arise from membership in 
that particular society of men; but even those privi¬ 
leges are not the gift of government but the creation 
and effect of the society itself, just as every power of 
the government is also the gift of the society. 

We pardon the error of the reference to Magna 
Charta, however, when we read on in the brief and 
find it immediately quoting from our Statute: “We 
hold these truths to be self-evident, that all men are 
created equal; that they are endowed by their Creator 
with certain unalienable Rights; that among these are 
Life, Liberty and the pursuit of Happiness. That to 
secure these Rights, Governments are instituted among 
men, deriving their just powers from the consent of the 
Governed. That whenever any Form of Government 
becomes destructive of these ends, it is the Right of 
the People to alter or to abolish it, and to institute new 
Government, laying its foundation on such principles 
and organizing its powers on such form, as to them 
shall seem most likely to effect their Safety and 
Happiness.” 

At last, in this brief, we are getting the clear echo of 
our own knowledge that, until this Statute is revoked, 
it is not the right of ‘^government or governments** to 
institute new government, laying its foundation on 
such principles and organizing its powers in such form 
as to “governments” shall seem most likely- to effect 
the safety and happiness “of governments.” More¬ 
over, in this brief, we are getting the clear echo of our 


312 


Citizen or Subject? 


own knowledge that this Statute can never be revoked, 
while we remain free men and citizens instead of the 
subjects we were until that Statute was enacted. 

And when we turn to another brief for a moment, 
we are cheered to find the refutation of the Sheppard 
ignorance of the identity of those who made our Con¬ 
stitution, “We, the people of” America, in its Preamble 
and its most important factor of the Tenth Amend¬ 
ment, the “conventions” of ourselves in its Seventh 
and its Fifth Articles. With gratification that some 
“constitutional” lawyers still know and observe the 
important distinction between the ability of ourselves, 
the “conventions” of the Seventh and Fifth Articles, 
and the lack of ability in the “legislatures” of the Fifth 
Article to give to government national powers, we 
average Americans recognize, in the following chal¬ 
lenge of this brief, the challenge we would have made 
to the Sheppard proposition that legislatures attempt 
to constitute such new government over us. This is the 
challenge of the brief to Sheppard: “The Constitution 
is not a compact between states. It proceeds directly 
from the people. As was said by Mr. Chief Justice 
Marshall in McCulloch v. Maryland, 4 Wheat, 316, 
etc.” Then follows the Marshall clear exposition of 
how the people themselves, the “conventions,” made 
the constitution which is the First Article and how, if 
any other constitution of that kind, such as the Eigh¬ 
teenth Amendment, is ever to be made “safely, 
effectively, and wisely” it must be made by ourselves, 
assembled in the “conventions” named in the Fifth 
Article. The full extract from Marshall has been set 
out already herein at page 98. 

In a second brief, in a different case, the same dis¬ 
tinguished lawyer of 1920 is found bringing into bold 


Lest We Forget 


313 


relief another part of our knowledge so Intimately con¬ 
nected with the supposed new constitution of govern¬ 
ment, the Eighteenth Amendment. And it is a part of 
our knowledge which challenges a new constitution 
made entirely by governments without any action by 
ourselves, the people or the “conventions” named re¬ 
peatedly In the Constitution made by themselves. In 
that other brief, we find him stating as one of the 
propositions on which he bases his argument, “What 
the expression ‘legislatures of the several states’ meant 
as used In Article V, when that Article was adopted as 
a part of the Constitution, It means now.” The state¬ 
ment being undeniably true, he Immediately proceeds 
to urge, with equal truth, that “however popular ap¬ 
proval or disapproval [i.e., the direct action of the 
people themselves, as, for example, in the ‘conven¬ 
tions’ whence, as he already stated, our Constitution 
proceeded ‘directly from the people’] may be invoked, 
the people do not become a ‘legislature.’ ... As 
well confound the creator and the creature—the prin¬ 
cipal and the agent through which he acts.” 

This Is the echo of Marshall’s clear statement of 
the vital distinction between the same “legislatures” 
(who never are the people and never have the reserved 
ability of the people) and the “people” or “conven¬ 
tions” (which are the people and have the exclusive 
ability of the people). We recall the tribute paid to 
this distinction at Philadelphia. We recall the legal 
decision there, a decision based squarely on that dis¬ 
tinction, that the legislative ability to make federal 
Articles could not constitute new government of men, 
as did the First Article, and that all Articles like it 
or the new Eighteenth Amendment must go to the 
“people” of the Tenth Amendment, the “conventions” 


314 


Citizen or Subject? 


of the Seventh and Fifth Articles. We recall Mar¬ 
shall’s appreciation of the accuracy of that legal de¬ 
cision, when he mentioned that the ability of the state 
governments or legislatures had been competent to 
make the federal Articles of 1781 but, when it was 
proposed to constitute government of men, to vest the 
national powers of the national First Article, “the ne¬ 
cessity of deriving those powers directly from the 
people [the “conventions” of the Seventh Article] was 
known and recognized by all.” We remember that 
the “people” or “conventions,” so recognizing and 
knowing, mentioned themselves In the Fifth Article so 
that no one ever should forget the similar legal ne¬ 
cessity that every Article like the First, such as the 
new Article, must always be made by those “conven¬ 
tions” so mentioned. 

It is, therefore, with considerable satisfaction that 
we read. In this brief of 1920, the clear echo of all 
these settled facts, the knowledge that “legislatures” 
never are the people and never become the people. 
“As well confound the creator and the creature—the 
principal and the agent.” 

In our gratitude for such remembrance, we ignore 
the inaccuracy of a suggestion that the “legislatures” 
of the Fifth Article are the agent of the principal 
therein mentioned, the “people” of America, the “con¬ 
ventions” which made the Constitution. Each of those 
“legislatures” is an agent of one particular reservee 
among those named collectively in the reservation of 
the Tenth Amendment In the words “to the states 
respectively while the “conventions” In the Fifth Ar¬ 
ticle Is the one most Important reservee In that Tenth 
Amendment, “the people” of America, the most im¬ 
portant factor In that Tenth Amendment and in 


Lest We Forget 


315 


America. For the purpose of making any Articles, 
whether federal or national, that Important reservee 
has no legislative agents. For any purpose, it has but 
one legislative agent, the Congress; and to that one 
legislative agent it has given no power to make any 
constitutional Articles; but It has, in the Fifth Article, 
left with that agent the mere ability to draft and pro¬ 
pose a new Article of either kind and, as did the 
Philadelphia Convention, from the nature of the Ar¬ 
ticle it drafts, whether within the ability of “legisla¬ 
tures’’ or within the exclusive unlimited ability of the 
people or “conventions,” to ascertain and propose 
which shall make the drafted Article. 

That the state legislatures are not agents of the 
American citizens, in that capacity. Is self-evident. 
Each legislature is chosen by the citizens of a state. 
Moreover, the Constitution itself distinctly states that 
the “conventions” of the American citizens grant no 
power of any kind therein to the state “legislatures.” 

When the American people created a national legisla¬ 
ture, with certain enumerated powers, it was neither neces¬ 
sary nor proper to define the powers retained by the states. 
These powers proceed, not from the people of America, but 
from the people of the several states; and remain, after 
the adoption of the Constitution, what they were before, 
except so far as they may be abridged by that instrument. 
(Marshall in Sturges v. Crowinshield, 4 Wheat, 122.) 

That Is why anything which these “legislatures” do, 
when it comes in conflict with a valid action of our 
legislature, the Congress, must always yield. We have 
the supreme will In America, and when our agent, the 
Congress, speaks with authority from us. It speaks for 
us, while the inferior agents of other lesser wills never 
speak for us. That clear distinction does not detract 


Citizen or Subject? 


316 

from the ability of those legislatures to make federal 
Articles in our Constitution. They do not get that 
ability from us, the citizens of America. They had 
that ability from those respective inferior wills, when 
we made our Constitution. By its exercise, they had 
made the federation of states and the federal Articles 
of its government. When we made our national Con¬ 
stitution, we continued that federation and the ability 
of its component members to make its federal Articles 
and put them in our Constitution, which is both our 
national Constitution and their federal Constitution. 
The ability to make those federal Articles is one of the 
powers reserved to those inferior wills by the reserva¬ 
tion of the Tenth Amendment which reads “to the 
states respectively”; and it is not an ability to make 
Articles which is granted in the Fifth Article. No 
ability to make Articles is granted in that Fifth Article. 

Inasmuch, however, as the writer of the brief in 
1920 has known that “legislatures” do not ever become 
“the people,” it is quite probable that his reference did 
not intend to suggest that the legislatures of which he 
spoke and who are the agents respectively of other 
citizens, were the agents, for any purpose, of the citi¬ 
zens of America. With his recognition that legisla¬ 
tures never are the people and with the other quoted 
extracts of those briefs of 1920 before us, echoing the 
knowledge we have acquired, we feel at least that in 
the court of 1920, from the debate of men who know, 
we will learn whether and “when” and “how,” we, 
between 1907 and 1917, became subjects instead of 
the free men and citizens which we clearly were up 
to 1907. 

At least such was the thought of one American citi¬ 
zen, when he read this quotation, in one of the briefs 


Lest We Forget 317 

of 1920, “that the people do not become a legisla¬ 
ture. ... As well confound the creator and the 
creature—the principal and the agent through which 
he acts.” It was almost incredible to this particular 
American citizen that he found this statement and the 
statement that—“The Constitution is not a compact 
between states. It proceeds directly from the people.” 
—both in the briefs of the foremost champion of the 
new Amendment. And it seemed equally incredible to 
him to find the quotation about the Statute of ’76 being 
“one great muniment of our liberty which can never 
be amended, revoked or withdrawn” in the brief of 
the counsel for the political organization which dic¬ 
tated the new state government command to the citi¬ 
zens of America. 

An unusual method had been adopted for the 
hearing of what were later reported under the one 
title the “National Prohibition Cases,” 253 U.S. 350. 
In that hearing, which continued for days, seven dif¬ 
ferent litigations were argued because all dealt either 
with the validity of the Eighteenth Amendment or 
with the meaning of its remarkable second section or 
with the statute enacted under that section and known 
as the Volstead Act. For the same reason, the briefs 
on both sides of the various litigations were clearly 
the result of conference and collaboration. Nearly all 
of the briefs, challenging the new Article, made their 
challenge on the same two main points and in the ex¬ 
pression of those two challenges, made constant 
reference to the different expression thereof in the 
other briefs. 

In the litigation and argument of that March, ap¬ 
peared many of the best known lawyers in America. 
Among them were distinguished counsel, appearing on 


Citizen or Subject? 


318 

behalf of those legislative governments who claim and, 
in the new Article, have attempted to exercise the om¬ 
nipotent supremacy over the citizens of America which 
was denied by the people of America to the British 
Parliament. Among them were other distinguished 
counsel, appearing on behalf of what had always 
been known as the supreme legislative government 
in America, our government with its enumerated 
powers and without omnipotence over us. Among 
them were still other distinguished counsel, appearing 
on behalf of some separate states or political entities 
to contend that there existed no constitutional ability 
anywhere, even in ourselves, to take from their par¬ 
ticular state any more of its sovereignty than it had 
surrendered in those early days when the states made 
the Constitution, as Sheppard claimed in the Congress 
of 1917. Among them were still other distinguished 
counsel, some of them the most distinguished of all, 
appearing to oppose, as best they knew how, the total 
destruction of all legitimate industry in a business in 
which it was the human right of Americans to engage 
even before Americans wrote their Statute of ’76 and 
consequently not a privilege of the citizen of America 
or the citizen of any state. 

As this fact has been the basis of many errors in that 
comedy and tragedy of errors, which is the five-year 
tale of the Eighteenth Amendment, we average Ameri¬ 
cans may well dwell for a moment upon the certainty 
of that fact. It is the natural mistake of those, who 
have the Tory concept of the relation of men to gov¬ 
ernment, that they should first confuse the meaning of 
the words “privilege of a citizen” with the words 
“privilege of a subject” and thus believe that the na¬ 
ture of both privileges, and the source of each are the 


Lest We Forget 


319 


same. That mistake is but the echo of the error which 
confuses the nature of Magna Charta with that of the 
Statute of ’76. Magna Charta is the declaration of 
certain privileges which government will permit its 
subjects to keep as long as the government pleases. 
The Statute of ’76 is the declaration that destroys the 
relation of government to subjects, creates the rela¬ 
tion of citizens to their servant governments, and states 
that the servants shall have no power to interfere with 
the human rights of the masters, given by their Cre¬ 
ator, except such power as the masters choose to give, 
and that the servants shall keep that power only so 
long as the masters will. To the Tory concept, al¬ 
ways concentrated on the relation of subject to master 
government, it is difficult of apprehension that the 
human being is born with the right to use his human 
freedom as he himself wills, so long as he does not 
interfere with the similar exercise of human freedom 
by the rest of us human beings. If men, in the exercise 
of their free will, would always obey the defined law 
of Flim who created them, the exercise of human free¬ 
dom by one individual would never interfere with the 
exercise of human freedom by all other individuals, 
and no human government need ever be constituted. 

Among the human rights of Americans, as of all 
human beings, when they come into the world, is the 
human right to do everything which is forbidden in the 
first section of the Eighteenth Amendment. It is true, 
as we frequently hear stated, that the Supreme Court 
has decided that the right to do any of those things is 
not the “privilege” of American citizens or of the 
citizens of any state. It is also equally true, although 
the Supreme Court has never been called upon to de¬ 
cide that very obvious fact, that the right to breathe 


320 


Citizen or Subject? 


is not the “privilege” of an American citizen or of the 
citizen of a state. Both rights are among the rights of 
human beings, as such, and they are each of them 
among the rights of themselves, which we, “the 
people” of America, established and ordained our Con¬ 
stitution to secure. When we established that Consti¬ 
tution for that purpose, we admittedly gave our only 
American government no power to make the command 
of the first section of the Eighteenth Amendment. 
That is why the governments of other citizens were 
asked to make the command to ourselves, the citizens 
of America. 

Each of the Americans, who created the nation that 
is America, already lived as a member and citizen of 
a state. In that state, when they had constituted it, 
the citizens thereof had subjected their human right 
(to do what the new Amendment says shall not be 
done) to a power in the government of that state (a 
power which they gave it and can take back from it) to 
make that kind of a command to them in that matter. 

We thus have clearly in our minds that the indi¬ 
vidual in America has the human right (with which the 
new Amendment interferes) and that it is subject to 
the interference of no government, except as the citi¬ 
zens of that particular government have given it power 
so to interfere with it. The undoubted fact that the 
right itself is not the privilege of the citizen of 
America or the citizen of the state is simply another 
way of saying that the original human right itself is not 
granted to the human being by government or govern¬ 
ments but by the Creator Who made him. Without 
the Tory concept, no man would even make the mistake 
of believing that a citizen gets any of his privileges 
from any government. The privileges of a citizen are 


Lest We Forget 


321 


the things which he acquires by his voluntary associa¬ 
tion with the other citizens as the members of a po¬ 
litical society which is the nation. The human rights of 
the same individual are the rights which he brings into 
that association and subjects to whatever powers of its 
government are granted by himself and those other 
citizens with whom he associates as the nation. 

Of course, the early Americans, with whom we have 
now been educated, not only knew these things clearly 
and accurately, but on their knowledge of them based 
everything that they did in the fifteen years which we 
have lived with them. The Americans of today, who up¬ 
hold the new constitution of government made entirely 
by government, do not know them at all or understand 
them when they hear them. Neither would the aristo¬ 
crats of France, before the French Revolution, nor the 
Tories of England, even at the time of our Revolution, 
have known or understood them. That is why the 
Americans continued their Revolution and won it, so 
that these things might .be the basis of every govern¬ 
ment interference with any human right. Later they 
made the American Constitution solely to secure the 
greatest possible protected enjoyment of all individual 
human rigths. That security is one of the privileges 
acquired by citizenship in the society which that Con¬ 
stitution created. Wherefore, it is of interest for us 
to know how clearly Madison, who largely planned 
that Constitution and who worded its Fifth Article, 
did know and understand these facts in relation even 
to the very things forbidden in the new constitution of 
government made entirely by government. 

In the House of Representatives, in the first session 
of the new Congress with the enumerated powers of 
the First Article, on May 15, there came up for dis- 

j 


322 


Citizen or Subject? 


cussion “a proposed bill laying duties on goods.” 
Madison “moved to lay an impost of eight cents on 
all beer imported. He did not think this would be a 
monopoly, but he hoped it would be such an encourage¬ 
ment so as to induce the manufacture to take deep root 
in every state of the Union.’’ (4 Ell. Deb. 345 *) 

That the knowledge of Madison was not unknown 
to the Supreme Court a century later, in 1890, is a 
matter of record. 

That ardent spirits, distilled liquors, ale, and beer are 
subjects of exchange, barter, and traffic, like any other 
commodity in which a right of traffic exists, and are so 
recognized by the usages of the commercial world, the laws 
of Congress, and the decisions of courts, is not denied. 
(Leisy V. Hardin, 135 V. S. 100.) 

Returning to the courtroom of 1920, therefore, 
we are sincerely glad to note the appearance of quite 
an array of eminent counsel on behalf of those le¬ 
gitimately engaged in a business which is just as 
legitimate an exercise of human right, as it was 
when Madison hoped that it would take deep root in 
every state of the America he loved so well, a business 
which will continue free from unlawful usurpation of 
power by government so long as the Constitution 
planned by Madison is obeyed by governments in 
America. It is too bad that the eminent counsel, who 
shared Madison’s views in relation to that legitimate 
business, did not also have Madison’s accurate knowl¬ 
edge of the only way in which legitimate government 
power-can be created to interfere with that or any 
other human right, the way which Madison so clearly 
stated in the Fifth Article—by grant from the “con¬ 
ventions” of American citizens. 


Lest We Forget 


^ 

When we average Americans look over the great 
array of counsel and the respective clients whose 
causes they champion, one fact lends no encouragement 
to our hope that we may learn the merits of the claim 
that, somehow between 1907 and 1917 we became 
subjects and lost our status as free men. Although 
each client is represented by his own distinguished at¬ 
torneys and although eminent counsel argue and file 
briefs, as amici curia, on behalf of the state govern¬ 
ments which claim that we are subjects and on behalf 
of some of the litigating other states and individuals, 
no amicus curia files any brief on behalf of us, the citi¬ 
zens of America, the reservees of the Tenth Amend¬ 
ment, the “conventions” of the Seventh and the Fifth 
Articles. 

There is, however, this comfort. If, because the 
counsel in opposition to the new Amendment do not 
know and urge our legal protection against any new 
constitution of national government except by our¬ 
selves, the citizens of America, the “conventions” of 
the Fifth Article, and if, because of such ignorance on 
the part of counsel, the Court should not be called upon 
either to consider or pass upon our protection, no de¬ 
cision of the Court will be intended to have—as no 
decision of the Court could have—any effect upon our 
protection. If counsel fail to bring before the Court 
the legal facts which demonstrate that the new Amend¬ 
ment is not in the Constitution unless we Americans 
are “subjects,” our day in Court is merely postponed. 
And when that day shall come, when that Court is ad¬ 
dressed by counsel who do represent the citizens of 
America and who accurately know the constitutional 
protection which we have for all our rights, there is 
not the slightest danger that the Court, established and 


324 


Citizen or Subject? 


maintained by us for the sole purpose of protecting 
our individual rights against usurpation by govern¬ 
ment, will decide that we are subjects and that gov¬ 
ernments can create new government power to interfere 
with the freedom of the individual American citizen. 

Meanwhile, let us examine the briefs of March, 
1920. In them, despite our regret that not one of 
them was written in our behalf, it may be possible, it 
ought to be a certainty, that we will hear something 
about the “when” and the “how,” after 1907, we are 
supposed to have lost our status as free men and citi¬ 
zens of America. 


CHAPTER XXI 


BRIEFS IGNORE THE AMERICAN CITIZEN 

T here is one man whose skill as an artist could 
do justice to the atmosphere in which all the 
briefs of that March must have been written. Un¬ 
fortunately, the reports of the death of that man are 
no longer greatly exaggerated. It is unfortunate that 
the man who pictured the sensations of a Yankee in 
King Arthur’s Court could not have lived to reverse 
the feat. Only his genius could picture one of the 
Americans of 1790 living in the atmosphere of the 
briefs of 1920 for the new Amendment and learning 
therein that the Americans of his own day never be¬ 
came citizens of America. Only the unique word- 
artist, who defined a cauliflower as a cabbage with a 
college education, could adequately state the startling 
fact that not one of the briefers knew that all were 
assembled in the court room of March, 1920, seriously 
to debate whether the Americans in 1788 voluntarily 
surrendered their status as free men and, repealing 
their Statute of ’76, declared themselves and their 
posterity subject to a legislative government superior 
to what they called their supreme legislature, a legis¬ 
lative government “invested with power to legislate 
for us in all cases whatsoever.” 

Because Mark Twain is dead, we must get from 
those briefs, without his aid, the knowledge that the 
new Article depends entirely on the extraordinary con¬ 
cept that the Fifth Article constituted a hitherto un- 

325 


Citizen or Subject? 


326 

known government of all American citizens, not our 
government of enumerated First Article powers but 
an entirely distinct government—not a member of it 
chosen by American citizens—“invested with power to 
legislate for us in all cases whatsoever.” 

In other words, v/e are to learn from the briefs for 
the new Article that our supposed only and supreme 
American government is, and that all American citi¬ 
zens are, subject to the omnipotence of a still more 
supreme legislative government, consisting of the state 
legislative governments on whose behalf some of the 
most distinguished lawyers of 1920 appeared. It is 
the clear concept of those lawyers that upon the will of 
the governments they represented, a will subject to the 
restraint of no Constitution in America, depends en¬ 
tirely what measure of human freedom we individual 
American citizens may enjoy. This concept stands out 
clear and sharply defined in their briefs, although neither 
they nor their opponent lawyers grasp the fact. On the 
fact that the Fifth Article mentions their client govern¬ 
ments, the state legislatures, they base the entire claim 
that the Eighteenth Amendment is in our Constitution. 
On this mention rests their extraordinary assumption 
th^t the Fifth Article is a ^‘granf* of power to those 
governments—and to the very “conventions” which 
made the Fifth Article—^to make new Articles of every 
kind, whether federal to govern states or, national to 
interfere with the freedom of the individual. 

Furthermore, we are to learn, from the briefs of 
the lawyers against the new Article, that they all as¬ 
sert, like their opponents, that the Fifth Article is a 
grant of power to the grantors and to the state gov¬ 
ernments. To our amazement, in the briefs of the 
lawyers against the new Article, we shall find no knowl- 


Briefs Ignore the American Citizen 327 

edge of or insistence upon the important fact that the 
Constitution is both a federal and a national Constitu¬ 
tion. Most amazing of all, in no brief of any lawyer, 
shall we find the faintest recognition of the decisive 
fact that the “conventions” of the Fifth Article are the 
American citizens themselves, while the state “legis¬ 
latures” of the Fifth Article are respectively the at¬ 
torneys in fact for respective citizens of other political 
entities than the nation which is America. Most briefs, 
for the new Amendment, will dwell upon the fact that 
the people of America, not the states, made the Con¬ 
stitution. Yet, although it is equally true to say that 
the whole people of America or the “conventions” of 
the Seventh Article made the Constitution, no briefer 
will know that the “conventions” of the Fifth Article 
are also the whole people of America, while the state 
“legislatures” never are the attorneys in fact for the 
citizens of America, who never chose a single member 
of those “legislatures.” 

That all those lawyers, who debated the extent of 
the imaginary “grant” of power in the Fifth Article, 
may do themselves strict justice, let us accurately state 
a few indisputable facts before we consider their briefs. 

It is a fact that the subject matter of the first section 
command and the second section grant, in the Eigh¬ 
teenth Amendment, is the exercise of a human right, 
not the privilege of a citizen of America or the citizen 
of any state. 

It is a fact that the Americans in each former col¬ 
ony, in 1776, constituted a state for themselves and a 
government of that state and subjected that particular 
right, as all their individual human rights, to the gen¬ 
eral welfare state power of that government, the 
power which is now known as the police power. 


328 Citizen or Subject? 

It is a fact that, from 1776 to 1787, that particular 
individual right, as all the human rights of the citizens 
of any state, was subject to no interference by any gov¬ 
ernment or governments in the world except the one 
legislative government of that particular state. It is 
a fact that all the legislative governments of the other 
states and the government of the federation of states 
could neither exercise nor grant, as some of them have 
attempted to do in the Eighteenth Amendment, any 
power to interfere with that particular individual free¬ 
dom or any other individual freedom of the citizens 
in that particular state. 

It is a fact that, on June 21, 1788, the Americans 
in the nine states became collectively one political 
entity, the citizens of America, composing the nation 
which is America. It is a fact, and a fact which flatly 
denies the existence of the Eighteenth Amendment^ 
that, on June 21, 1788, the existing state legislatures 
did not become an omnipotent legislative body of the 
new nation “invested with power to legislate” for 
American citizens “in all cases whatsoever” in inter¬ 
ference with our individual freedom. It is a fact that 
those legislatures did not then become any government 
for the citizens of America on any subject whatsoever. 

It is a fact that not one of those state legislatures 
received any new power to interfere with human free¬ 
dom anywhere by any grant of such power in the seven 
Articles of our Constitution. The opening words of 
the First Article expressly so declare. They are, “All 
legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of 
a Senate and a House of Representatives.” Moreover, 
the Tenth Amendment, the declaration insisted upon 
by the whole “people” of America in their “conven- 


Briefs Ignore the American Citizen 329 

tions,” expressly so declares. Its declaration Is that the 
entire Constitution gives no new power to any govern¬ 
ment except the new government of America, the 
government constituted by the First Article. 

It is a fact, again a fact which denies the existence 
of the Eighteenth Amendment, that the general con¬ 
stitutional restrictions upon government power to in¬ 
terfere with individual freedom are restraints upon the 
exercise of every grant of such power in the Constitu¬ 
tion, and that they do not restrain the state govern¬ 
ments because those governments are the donee of no 
power of that kind in that Constitution. This fact, a 
patent fact hardly needing settlement, was decisively 
settled in 1833 by the decision of the Supreme Court, 
announced by Marshall, In Barron v. Mayor of Balti¬ 
more, 7 Peters, 43. Barron contended that the Fifth 
Amendment restrained the power of the state govern¬ 
ments. Marshall said: 

The question thus presented is, we think, of great im¬ 
portance, but not of much difficulty. The Constitution 
was ordained and established by the people of the United 
States for themselves, for their own government, and not 
for the government of the individual states. Each state 
established a constitution for itself, and in that constitution 
provided such limitations and restrictions on the powers 
of its particular government as its judgment dictated. The 
people of the United States framed such a government for 
the United States as they supposed best adapted to their 
situation, and best calculated to promote their interests. 
The powers they conferred on this government were to be 
exercised by itself; and the limitations on power, if ex¬ 
pressed in general terms, are naturally, and, we think, 
necessarily, applicable to the government created by^ the 
instrument. They are limitations of power granted in the 
instrument itself; not of distinct governments, framed by 
different persons and for different purposes. 


330 


Citizen or Subject? 


The decision settled that the entire Constitution 
vested in the state governments not a single power to 
interfere with individual freedom in any respect. The 
decision is based on that one fact. The fact and de¬ 
cision expose the absurdity of the thought that the 
Fifth Article is a grant’’ of any such power to the 
state governments, much less a grant of ever’^ such 
power to those governments. This absurd thought, 
however, is the assumption on which every advocate 
of the Eighteenth Amendment based his argument in 
March, 1920: and it is the assumption upon which 
wholly depends the existence of the Amendment. 

It IS a fact that the state legislatures, before the 
Constitution was even proposed, had existing ability 
to make federal Articles. It is a fact, as the Tenth 
Amendment declares, that the “conventions” of the 
Seventh Article reserved that federal ability to those 
state governments and that the Fifth Article did 
not grant” it to them. It is a fact, that the “con¬ 
ventions” of ourselves, the American citizens assem¬ 
bled in their respective states, the “conventions” 
of the Seventh and the Fifth Article, even before 
the Constitution was worded or proposed, had ex¬ 
clusive ability to make national Articles, which either 
directly interfere or grant ability to interfere with 
individual freedom. It is a fact that this power of 
the “conventions” included the ability to make any 
kind of Article, either federal or national. It is a 
fact, therefore, as the “conventions” of the American 
citizens had this omnipotent power before the Fifth 
Article was even drafted, and as the Tenth Amend¬ 
ment states that they reserved it to themselves, that 
they did not grant all of it (as the advocates of 
the new Amendment claimed in March, 1920), or 


Briefs Ignore the American Citizen 331 

part of it (as the opponents of the new Amendment 
claimed in March, 1920) to themselves in their own 
Fifth Article. It is a fact, therefore, that the mention 
of the two existing abilities (the existing omnipotent 
ability of the “conventions” and the existing limited 
ability of the “state legislatures”) does not make the 
Fifth Article any of power either to the “con¬ 

ventions” (who made the Article) or to the state 
“legislatures.” 

It is-2i fact that the very “conventions” named in 
the Fifth Article andvthe American citizens assembled 
therein, while they were making that Article, accu¬ 
rately knew that it was nothing but a constitutional 
mode of procedure for two distinct and existing 
powers, and that it did not ^^granf* any power what¬ 
ever to the state governments. 

Speaking of the Constitution, with its Fifth Article, 
the entire convention in Virginia declared that all the 
powers granted in the Constitution were being granted 
by the people of America “and that every power, not 
granted thereby, remains with them^ and at their will.” 
Nothing could more clearly express the knowledge that 
the Fifth Article was not a grant of any power by the 
“conventions” to the “conventions” or to the state 
governments. In the Virginia convention, Lee stated: 
“This new system shows, in stronger terms than words 
could declare, that the liberties of the people are 
secure. It goes on the principle that all power is 
in the people, and that rulers have no powers but 
what are enumerated [in the First Article] in that 
paper. . . . Candor must confess that it is infinitely 
more attentive to the liberties of the people than any 
state government.” (3 Ell. Deh. 186.) 

In the South Carolina convention, Pinckney said: 


332 


Citizen or Subject? 


“With us, the sovereignty of the Union is in the 
people” Ell. Deb. 328), and again “I conceive it as 
indispensable, in a republic, that all authority should 
flow from the people.” (4 Ell. Deb. 326.) 

Hamilton, one of the people assembled in the New 
York convention, said: “As the people are the only 
legitimate fountain of power, and it is from them that 
the constitutional charter, under which the several 
branches of government hold their power, is derived, 
it seems strictly consonant to the republican theory, to 
recur to the same original authority,” the people them¬ 
selves, the “conventions” of the Fifth Article and the 
Seventh, “whenever it may be necessary to enlarge, 
diminish, or new-model the powers of government.” 
{Fed. No. 49.) He could hardly have made more clear 
his knowledge that the Fifth Article was not a “grant” 
of power to the state governments. As Madison and 
Hamilton proposed and seconded the only Fifth Article, 
at Philadelphia, which ever mentioned the state legis¬ 
latures, their own words have great weight in the 
interpretation of its language. For which reason, it 
is well to recall again that Madison, in Federalist 
Number 37, clearly said that “the genius of republican 
liberty seems to demand . . . not only that all 
power should be derived from the people.” And 
either Madison or Hamilton said in The Federalist, 
Number 49, the reference to the Fifth Article being 
unmistakable from what they said, “There is certainly 
great force in this reasoning, and it must be allowed 
to prove that a constitutional road to the decision of 
the people ought to be marked out and kept open, for 
certain great and extraordinary occasions.” As they 
both maintained, at the Philadelphia Convention and 
thereafter, that the ability of state governments was 


Briefs Ignore the American Citizen 333 

Incompetent to constitute government with national 
powers to interfere with human freedom, and as they 
both repeatedly stated that it would be contrary to the 
genius of republican liberty that any governments 
should have that ability, they have made unmistakable 
their knowledge that the Fifth Article, which they pro¬ 
posed and seconded and which Madison probably 
worded, did not grant any such ability to governments. 

In the Pennsylvania convention, Wilson clearly ex¬ 
pressed the knowledge which reads the new Eighteenth 
Amendment out of our Constitution, when he said: 
“In this Constitution, the citizens of the United States 
appear dispensing a part of their original power in 
what manner and what proportion they think fit. They 
never part with the whole; and they retain the right of 
recalling what they part with.” (2 Ell. Deb. 437.) 
Can any man, even a modern “constitutional” lawyer, 
reconcile that knowledge with the thought that the 
Fifth Article Is a grant of power to the state govern¬ 
ments? Again in the same convention, he said, speak¬ 
ing of our Constitution: “Here, sir, the fee simple of 
power remains In the people at large and by this Con¬ 
stitution they do not part with It.” (2 Ell. Deb. 435.) 
In the North Carolina convention, Iredell, later on the' 
Supreme Court Bench, said: “No man, let his Ingenuity 
be what It will, could enumerate all the Individual 
rights not relinquished by this Constitution.” (4 Ell. 
Deb. 149.) 

All these facts should be dwelt upon and emphasized 
in the briefs of the lawyers against the new Article in 
which government attempts to exercise ungranted 
power and to grant new power to interfere with the 
individual freedom of the American citizen. And 
against all our education In the “conventions,” it must 


334 


Citizen or Subject? 


be the burden of the briefs of the lawyers for the new 
Amendment to uphold the amazing proposition that 
all the individual rights of the American citizens were, 
by the Fifth Article, made subject to a supposed 
omnipotence granted to the state governments, not a 
member of which is chosen by the citizens of America. 


I 


CHAPTER XXII 


NO CHALLENGE TO THE TORY CONCEPT 

W E average Americans, therefore, come to the 
courtroom of 1920 with some knowledge that is 
a mathematical certainty. We know that everything 
done at Philadelphia by the “conventions” named in 
the Seventh Article was done with one dominant pur¬ 
pose—the security of individual human freedom. We 
know that, at Philadelphia and in those “conventions,” 
the old states and their governments, the federal gov¬ 
ernment and its continuation in the new Constitution, 
the new nation and its Constitution and its government 
were only important as the American citizens consid¬ 
ered that each or all would contribute to the security 
of American individual freedom. We know that, only 
in rare instances, such as that of Gerry, did a Tory 
mental attitude lead a man into the error (for any 
American after ’76) of thinking that political entities 
(such as states or nations or their governments) have 
the slightest importance except in so far as they con¬ 
tribute to the individual freedom of the citizens who 
create them and must control them, if an American is 
to remain a citizen. We know that every American, 
in those “conventions,” discussed and voted upon every 
mention of these political entities, with insistent real¬ 
ization that nothing anywhere in the Constitution was 
intended to disturb or did disturb the legal fact that 
only the citizens of America, in “conventions,” ever 
could say how much national power the new govern- 

335 


336 


Citizen or Subject? 


merit should have, how much each old state should be 
allowed to retain over its own citizens and how much 
the citizens of America should reserve from all govern¬ 
ments in America. We also know this legal fact to 
have been the most important legal fact in America to 
the Americans in those “conventions.” We know that 
it was the legal fact whose denial by the British Par¬ 
liament caused the Revolution. We know that, from 
July 4, 1776, everything which the Americans did 
was solely to make it impossible that any one could 
ever deny this legal fact in America. 

And we also know, something that has been entirely 
ignored since 1917, that these “conventions” knew that 
the “conventions” of the Seventh and the Fifth Ar¬ 
ticles were identically the same thing and were the most 
important reservee in the Tenth Amendment, “the 
people” of America, in their aggregate and collective 
capacity as Henry accurately put it. 

With this simple and amazingly important knowl¬ 
edge of facts, a knowledge acquired by our education 
with the Americans who made themselves and their 
posterity free men instead of “subjects,” we come to 
the arguments and briefs of 1920. There we expect 
to learn how the opponents of the Eighteenth Amend¬ 
ment presented and its supporters answered these 
facts. Because these facts we do know, if they are all 
the facts, flatly deny the existence of that new national 
Article, made by governments alone. 

If forbearance were the sole rule for conduct, if 
conscience permitted us to ignore the great danger to 
our own individual freedom in every matter, we would 
be absolutely silent as to the contents of all those 
briefs. But, that the supposed presence of the new 
national Article in the national Constitution of a free 


No Challenge to the Tory Concept 337 

people may never be a precedent for other government 
making of national Articles, it is our duty to learn and 
state what those briefs all disclose. 

Not one of them recognizes the identity of the “con¬ 
ventions” of the Fifth Article with the “conventions” 
of the Seventh. And all ignore the Identity of the 
Fifth Article “conventions” with “We, the people” of 
America, In the Preamble, and with the most Important 
reservee of the Tenth Amendment, “the people” of 
America. 

Every argument, whether for or against the new 
national article, is based upon the sheer and absurd 
assumption that the “conventions” In their Fifth Ar¬ 
ticle did make a grant to themselves, the “conven¬ 
tions,” and to the state governments. The advocates 
of the new Article assume that the “conventions” 
granted to themselves and to the state governments all 
the Inalienable omnipotence of the American people 
themselves, in their aggregate capacity as the citizens 
of America, the very omnipotence the supposed 
grantors were exercising when they made the Fifth 
Article. The opponents of the new national Article 
assert the absurd assumption of a **grant,*^ but contend 
for diverse reasons—remarkable by reason of the 
fallacy of a ^^grant” on which each rests—that the 
“conventions” grant to themselves only a part of the 
omnipotence which they already had and were exercis¬ 
ing when they made the supposed “grant.” On which 
theory, they urge that the supposed “grant” to the 
state governments, being Identical with the supposed 
“grant” to the grantors themselves, is only part, of the 
omnipotence which the grantors already had and does 
not Include ability to make Articles like the Eighteenth 
Amendment. 


Citizen or Subject? 


338 

Not one of these briefs recognizes or urges that the 
Fifth Article is not a “grant” of ability to make Ar¬ 
ticles whether federal or national. No brief knows 
the Fifth Article to be simply the ratification, by the 
whole American people, of a hitherto revolutionary 
mode of procedure as the future constitutional 
mode in which may be exercised either the existing and 
limited ability of state legislatures to make federal 
Articles or the existing and unlimited ability of the 
“people” (the “conventions”) to make any Articles. 
No brief either recognizes or urges the absurdity of 
the thought that the “conventions” intended to grant 
or did grant to themselves, the “conventions,” any part 
of the omnipotence which the supposed grantors were 
actually exercising when making the supposed grant. 

No brief recognizes that one of the supposed 
grantees is the supposed grantor. No brief seems to 
know that the supposed grantees were respectively 
competent makers of certain kinds of Articles even 
before the Fifth Article was written at Philadelphia. 
No brief seems to know—or to sense the decisive effect 
of the fact—that, within the twelve years which imme¬ 
diately preceded the supposed “grant,” each of the two 
respective makers of Articles, who are mentioned in the 
Fifth Article, had exercised its respective ability to 
make Articles of a certain kind. No brief seems to 
know that one of the supposed grantees, the “conven¬ 
tions,” at the very moment of the supposed “grant,” 
was exercising its own unlimited ability to make Arti¬ 
cles of every kind. For all that the briefs disclose, in 
the decisive effect of the two facts upon the supposed 
validity of the Eighteenth Amendment, the “state 
legislatures” might never have made the federal Ar- 


No Challenge to the Tory Concept 339 

tides of 1781 and the “conventions” might never have 
made the federal and national Articles of 1788. 

No brief urges the greatest legal decision made at 
Philadelphia in 1787 as binding legal authority that 
the state “legislatures” of the Fifth Article never can, 
while the Fifth Article “conventions” always can, make 
a national Article like the First Article or the Eigh¬ 
teenth Amendment. One brief does suggest that de¬ 
cision as authority for the absurd proposition that the 
Fifth Article mentions no constitutional mode in 
which even the exclusive ability of the “conventions” 
of tfie American citizens can be again exercised to 
make Articles like the First Article and the Eighteenth 
Amendment. In urging that absurd proposition, the 
briefer wholly ignores the fact that the Philadelphia 
Convention, which made that legal decision, reached 
its conclusion by ascertaining what were and still are 
the respective abilities (to make Articles) of the state 
“legislatures” and the “conventions,” both of which 
are named as future makers in the Fifth Article. 

No brief recognizes the fact (or urges any argument 
based upon It) that the Constitution is both a federal 
and a national Constitution. For which reason, no 
brief points out that the Tenth Amendment expressly 
reserves the ability to make federal Articles to the 
state “legislatures” and the exclusive ability to make 
national Articles to the “conventions.” For which 
reason, no brief points out that each of the two 
reservees, named in the Tenth Amendment, Is men¬ 
tioned separately In the Fifth Article as a possible 
maker of future articles, whenever a proposed future 
Article is of the kind which the existing ability of the 
proposed maker Is competent to make. 

No brief, against the new Amendment, challenges 


340 


Citizen or Subject? 


the sheer and absurd assumption that the Fifth Article 
is a ‘‘grant.” No brief, for the new Amendment, offers 
or suggests the slightest fact in support of that sheer 
assumption. 

Every brief for the new Amendment, on the fallacy 
of the sheer assumption that the Fifth Article is a 
grant, contends that the Article makes a fractional part 
of the state legislatures an omnipotent Parliament for 
the American people, a Parliament not restrained by 
any constitutional limitations in state or national con¬ 
stitutions but a Parliament which can do what it will 
with every individual right of every human being in 
America. These briefs neither know nor care that 
their concept of the Fifth Article means that the “con¬ 
ventions” of the American citizens, twelve years after 
the Declaration of Independence, intended to make 
and did make themselves absolute “subjects” of gov¬ 
ernments, not one of whose legislators was to be 
elected by Americans in their capacity as American 
citizens. The foremost of these briefs were written 
by eminent “constitutional” lawyers who had, as cli¬ 
ents, the very governments which claimed this omnip¬ 
otence over individual Americans as their “subjects.” 

Every brief, against the new Amendment, not only 
admitted but asserted the absurd assumption that the 
Fifth Article is a “grant” to the grantors and to the 
state governments. In the foremost brief against the 
new Amendment, that absurd assumption is asserted 
or mentioned over fifty times. On this absurd assump¬ 
tion, every argument, in these briefs, as well as in the 
opposing briefs, is based. In this respect, there was 
but one difference between any brief and another. 
That difference was in reference to the extent of the 


No Challenge to the Tory Concept 341 

supposed “grant’’ which the grantors made to them¬ 
selves and to the state governments. 

Not one brief, presented in these litigations of 1920, 
knew or urged the undoubted fact that, because our 
government is both federal and national, if it wants 
new power to interfere with the freedom of the 
American citizen, that government can get that power 
in only one constitutional mode, through the “con¬ 
ventions” named in the Fifth Article. No briefer 
knew the legal necessity that all power of that kind 
must be obtained directly from the citizens of America, 
assembled in their “conventions.” We ourselves know 
that there was a day in America when that legal ne¬ 
cessity “was felt and acknowledged by all.” It is almost 
impossible for us, therefore, educated as we are in the 
experience of the Americans who did know, to believe 
these statements about these briefs. Yet the briefs 
speak for themselves. 

Before, however, we turn to verify the statements 
by the briefs themselves, it is well that we recall one 
amazing question and answer, during the arguments 
of 1920 in the Supreme Court, which question and an¬ 
swer overwhelmingly demonstrate that none of these 
“constitutional” lawyers knew or cared about the facts 
we know. 

The Supreme Court had listened, for several days, 
to many clever arguments against the new national 
Article. The arguments had challenged validity on 
the ground that the new Article infringed upon the 
political freedom of some political entity, such as a 
state or its government. Sometimes the arguments 
had challenged validity on the ground that the new 
Article infringed upon the liberty of the citizens of 
some particular state. No argument had challenged 


342 


Citizen or Subject? 


validity on the one patent and unanswerable ground 
that the “conventions” of 1788 had provided that no 
national Article, which (like the First Article and the 
Eighteenth Amendment) directly interferes with or 
grants power to interfere with individual liberty of 
the American citizen, could ever be constitution¬ 
ally made, except in the one constitutional mode 
of procedure, in which the only competent makers of 
national Articles can make such Articles, the “conven¬ 
tions in three fourths of” the states, mentioned in the 
Fifth Article. 

Rice of Rhode Island, one of the many prominent 
lawyers against validity, was urging his particular 
argument. Ignoring the citizens of America in the 
“conventions” of the Fifth Article, he claimed that 
no power in America could interfere with individuals 
in Rhode Island, outside the First Article matters, 
without the consent of Rhode Island itself. He was 
interrupted by the Court. In substance, this is the 
question and answer that followed: Justice Brandeis: 
“The court is now fully acquainted with the nature of 
the arguments of the various counsel as to why the 
new Article has not been validly made. The Court 
would like to know. In what way do counsel think that 
the new Article could be constitutionally made ?” And 
the answer of Rice, undoubtedly voicing the conviction 
of all his colleagues, for none of them had any other 
answer to volunteer, was: “/« no wayd^ 

Fresh from the “conventions,” which knew that 
they could have made what is supposed to be the Eigh¬ 
teenth Amendment, we could make the correct answer 
to that question. Our answer is that the “conventions” 
of the whole American people could have made this 
new Article in 1788 just as they did make the First 


No Challenge to the Tory Concept 343 

Article of exactly the same kind. They could have 
made it, not because any Constitution gave them the 
power to make it. They could have made it because, 
in its making, they would have exercised exactly the 
same existing ability which they exercised when they 
destroyed the power of the British Government over 
themselves in 1776, which they exercised when they 
ended the complete independence of each state in 1788 
and which they exercised when they made all the Ar¬ 
ticles of 1788. When they did each of these things, 
they had prescribed no “constitutional” mode of pro¬ 
cedure in which they might constitutionally exercise 
that exclusive ability of their own. By the declaration 
of the Tenth Amendment, they reserved that exclusive 
ability to themselves. And, in the Fifth Article, they 
prescribed, for the first time, exactly the same mode, 
in which they were then exercising that exclusive 
ability, as the future constitutional mode for its 
further exercise. As Marshall stated, in the Supreme 
Court, there is but one way in which they can exercise 
it, “safely, effectively, and wisely,” by assembling in 
their “conventions” in their respective states. 

If the accuracy and truth of this sole possible correct 
answer to the question of 1920 is so well known to us, 
certainly it should have been known to at least one 
of the “constitutional” lawyers of 1920. Moreover, 
every “constitutional” lawyer of 1920 should have 
known that the mention of state governments in the 
Fifth Article was not intended to make them omnipo¬ 
tent over the individual rights of the American citizen 
or to provide an unsafe, ineffectual and unwise way or 
any way in which government in America could create 
new government power to interfere with individual 
freedom. 


344 


Citizen or Subject? 


Madison wrote the Fifth Article. Immediately 
after he had secured its proposal from Philadelphia, 
in the Virginia convention he paid his famous tribute 
to the “conventions”—but not to the “state legisla¬ 
tures”—which he mentions In his Fifth Article. “Mr. 
Chairman, nothing has excited more admiration in the 
world than the manner In which free governments have 
been established In America; for it was the first in¬ 
stance, from the creation of the world to the American 
Revolution, that free inhabitants have been seen de¬ 
liberating on the form of government, and selecting 
such of their citizens as possessed their confidence, to 
determine upon and give effect to it.” (3 Ell. Deb. 
616.) 

But, whatever the Ignorance of our constitutional 
lawyers, zve know why Madison, in his Fifth Article, 
mentions these “conventions” in which free Inhabitants 
are seen deliberating on new grants or constitutions of 
government power to Interfere with Individual free¬ 
dom. When future grants of such power are sug¬ 
gested, there is to be a constitutional mode pre¬ 
scribed for the reassembling of such “conventions” to 
make or refuse the grants. 

Our experience with Madison and his colleagues 
would educate these “constitutional” lawyers to keen 
realization that the Americans of old knew the vital 
distinction, so Important to Individual liberty, between 
permanent and existing state legislatures and these 
“conventions” of the American people themselves, 
chosen for the one purpose of answering “Yes” or 
“No” to a particular question previously carefully con¬ 
sidered by all the American citizens. 

Let these “constitutional” lawyers spend a moment 
with Hamilton, on Friday, March 14, 1788, when 


No Challenge to the Tory Concept 345 

he was urging the American people to adopt the Con¬ 
stitution with that Fifth Article. 

He was discussing the mode which that Constitution 
provided for the election of the Chief Executive of 
the new nation. The mode was that the American 
citizens, In each state, should elect a temporary con¬ 
vention of delegates to deliberate upon and cast the 
votes of Americans In that state for some American 
as President. We sense, at once, the striking similarity 
between the temporary body, thus to be chosen for that 
purpose, and the temporary body or convention also 
to be chosen to pass upon the other single question, a 
“Yes” or “No” to some particular proposed new grant 
of government power to interfere with individual free¬ 
dom. The danger to Individual liberty would neces¬ 
sarily be much less in having a permanent government 
body, the legislature, cast the vote of the Americans 
in its state for an Executive, than In having the same 
permanent government body or legislature say the 
“Yes” or “No” of the Americans in that state to a new 
grant of government power to Interfere with the Indi¬ 
vidual liberty of all Americans. Therefore, If we find 
Hamilton dwelling upon the danger of state legisla¬ 
tures casting American votes for the American Execu¬ 
tive, we can be quite certain that neither Madison nor 
Hamilton nor their colleagues mentioned the existing 
ability of legislatures to make federal Articles (when 
these men worded and made their Fifth Article) In 
order that their words might be twisted away from any 
possible English meaning and say that the citizens of 
America appointed these state governments, not a 
member of which Is chosen by the citizens of America, 
to be their omnipotent attorney In fact for every pur¬ 
pose in the world, forever. 


34^ 


Citizen or Subject? 


This is what Hamilton had to say on the danger to 
liberty, If permanent state legislative governments, In¬ 
stead of special American delegates chosen for that 
purpose, should even elect the American President: 
“The mode of appointment of the Chief Magistrate 
of the United States Is almost the only part of the 
system, of any consequence, which has escaped without 
severe censure, or which has received the slightest 
mark of approbation from Its opponents.” 

(Incidentally we recall that the mode of procedure, 
which Is the Fifth Article, never received one word of 
censure from any opponent on any ground, except that 
It left to government the ability to reassemble the “con¬ 
ventions” of the people. It was claimed that, even If 
the people found the First Article power oppressive to 
their individual freedom, government would never re¬ 
assemble their “conventions” for the purpose of per¬ 
mitting them to withdraw any of those grants.) 

Hamilton proceeded as follows: “It was desirable 
that the sense of the people should operate In the 
choice of the person to whom so Important a trust was 
to be confided.” 

(We average Americans remember that the trust 
of making or refusing new power to interfere with in¬ 
dividual freedom would always be Infinitely more 
important.) 

“This end will be answered by committing the right 
of making It, not to any preestablished body, but to 
men chosen by the people for the special purpose, and 
at the particular conjuncture. ... A small number of 
persons, selected by their fellow citizens from the gen¬ 
eral mass, will be most likely to possess the information 
and discernment requisite to such complicated Inves¬ 
tigations. It was also peculiarly desirable to afford as 


No Challenge to the Tory Concept 347 

little opportunity as possible to tumult and disorder. 
. . . The precautions which have been so happily con¬ 
certed In the system under consideration, promise an 
effectual security against this mischief. . . . And, as 
the electors,” like the conventions for granting or re¬ 
fusing national power, “chosen in each State, are to 
assemble and vote in the State in which they are chosen, 
this detached and divided situation will expose them 
much less to heats and ferments, which might be com¬ 
municated from them to the people, than if they were 
all to be convened at one time, in one place.” 

(We recall Marshall’s echo of this in his later state¬ 
ment, speaking of the Fifth and Seventh Article “con¬ 
ventions,” “No political dreamer was ever wild enough 
to think of breaking down the lines which separate the 
states, and of compounding the American people Into 
one common mass. Of consequence, when they act, they 
act in their states. But the measures they adopt do 
not, on that account, cease to be the measures of the 
people themselves, or become the measures of the state 
governments.”) 

Hamilton went on: “Nothing was more to be de¬ 
sired than that every practicable obstacle should be op¬ 
posed to cabal, intrigue, and corruption. These most 
deadly adversaries of republican government might 
naturally have been expected to make their approaches 
from more than one quarter. . . . But the convention 
have guarded against all danger of this sort, with the 
most provident and judicious attention. They have 
not made the appointment of the President [or any 
grant of new power to Interfere with Individual free¬ 
dom] to depend on any preexisting bodies of men, who 
might be tampered with beforehand to prostitute their 
votes; but they have referred it. In the first Instance to 


34B 


Citizen or Subject? 


an immediate act of the people of America, to be 
exerted in the choice of persons for the temporary and 
sole purpose of making the appointment,” or a pro¬ 
posed grant of new power to interfere with individual 
liberty. . . . “Thus without corrupting the body of 
the people, the immediate agents in the election [or the 
grant] will at least enter upon the task free from any 
sinister bias. Their transient existence, and their de¬ 
tached situation, already taken notice of, afford a satis¬ 
factory prospect of their continuing so, to the conclu¬ 
sion of it. The business of corruption, when it is to 
embrace so considerable a number of men, requires 
time as well as means. Nor would it be found easy 
suddenly to embark them, dispersed as they would be 
over thirteen States [now forty-eight States] in any 
combinations founded upon motives, which though they 
could not properly be denominated corrupt, might yet 
be of a nature to mislead them from their duty.” {Fed, 
No. 68.) 

If Hamilton had been alive to watch the supposed 
legislative making of the Eighteenth Amendment, he 
would have seen the manner of that supposed making 
justify everything he said about the danger of letting 
permanent government bodies have anything to do 
with individual liberty, except the proper duty of each 
legislature to make laws for its own citizens on matters 
committed to that legislature by those citizens. And, 
from what we have just quoted, the “constitutional” 
lawyers of 1920 certainly should have known that, 
when Hamilton was alive, he and his associates, by * 
their mention of those “legislatures” in the Fifth Ar¬ 
ticle, never subjected themselves and their posterity, 
ourselves, to an omnipotent ability to do what those 


No Challenge to the Tory Concept 349 

governments might will with our individual rights, “in 
all matters whatsoever.” 

It has been our custom, as average American citi¬ 
zens, to rely upon our leaders to know and urge, at the 
proper time and place, our protection under our Ameri¬ 
can Constitution. We have seen the danger of such 
reliance in the record of our Congress of 1917. As 
many of our leaders are most renowned lawyers, the 
danger of that reliance is emphasized, if the briefs of 
those leaders and lawyers in 1920 disclose that they 
did not and do not know all these legal facts which 
are so clear and also so essential to our protection as 
American citizens. That we may ascertain whether 
these briefs do disclose this ignorance and do em¬ 
phasize the danger of such reliance, we must later 
examine the briefs themselves. But, that we may come 
to such an examination, properly prepared, it is neces¬ 
sary that we should know the nature of the litigations 
before the Court and what were the arguments against 
validity upon which the Court was asked to pass. In 
no other way, can we acquire our own knowledge that 
the Supreme Court has yet to hear and consider the 
real challenge to the supposed new Article in which 
governments attempt to exercise ungranted power and 
to grant new power to interfere with the individual free¬ 
dom of the American citizen. As we well know, that 
one real challenge is that the new Article was not made 
by those who alone can make it, that it was not made 
as it can be constitutionally made, by the makers 
of that kind of Article named in the Fifth Article, the 
“conventions” of the Seventh and the Fifth Articles, 
the “We, the people” of the Preamble and “the 
people” of the Tenth Amendment. 


CHAPTER XXIII 


THE CHALLENGES THAT FAILED 

^ I 'HE validity of the Eighteenth Amendment (seven 
litigations being heard together) was argued on 
March 8, 1920, and for several days thereafter. 

As we are not concerned with the meaning of the 
second section of the Amendment or with the validity 
of the Volstead Act (passed by Congress under the 
grant of said section) except as the validity of the Act 
depends upon the validity of the Amendment, we shall 
make no mention of either. 

The Court announced its decision, in all the litiga¬ 
tions, on June 7, 1920. Somewhat to the amazement 
of the country, but (in our humble opinion even at the 
time) very wisely, the Court refused to write any 
opinion whatever. Nothing could more certainly settle 
that the Court determined no question except the spe¬ 
cific questions presented by those who challenged 
validity. That we may be certain that the Court 
neither heard nor considered nor passed upon the real 
and the invincible challenge to the existence of the sup¬ 
posed new national Article, we will let the Court, in its 
own words, state exactly just what were the four 
propositions, advanced against validity, and state the 
simple fact that it negatived each of those four propo¬ 
sitions. Thus, in an impressive manner, we shall 
acquire our own knowledge that the fifth conclusion, 
which later we shall state, is but the conclusion of fact 

350 


The Challenges That Failed 


351 


that nothing, in the four propositions negatived, im¬ 
pairs the validity of the supposed Article. 

Mr. Justice Van Devanter announced the conclusions 
of the Court. 

Power to amend the Constitution was reserved by Article 
V, which reads: . . . 

(As we have been in the conventions which made it, 
we know it.) 

The text of the Eighteenth Amendment, proposed by 
Congress in 1917 and proclaimed as ratified in 1919, 40 
Stat. 1050, 1941, is as follows: . . . 

(The text of the first two sections is quoted on page 
465 herein.) 

We are here concerned with seven cases involving the 
validity of that Amendment and of certain general features 
of the National Prohibition Law, known as the Volstead 
Act, c. 83, 41 Stat. 305, which was adopted to enforce the 
Amendment. The relief sought in each case is an injunc¬ 
tion against the execution of that act. . . . The cases have 
been elaborately argued at the bar and in printed briefs; 
and the arguments have been attentively considered, with 
the result that we reach and announce the following con¬ 
clusions on the questions involved: 

1. The adoption by both houses of Congress, each by a 
two thirds vote, of a joint resolution proposing an amend¬ 
ment to the Constitution sufficiently shows that the pro¬ 
posal was deemed necessary by all who voted for it. An 
express declaration that they regarded it as necessary is not 
essential. None of the resolutions whereby prior amend¬ 
ments were proposed contained such a declaration. 

2. The two thirds vote in each house which is required 
in proposing an amendment is a vote of two thirds of the 
members present—assuming the presence of a quorum— 
and not a vote of two thirds of the entire membership, 
present and absent. Missouri Pacific Ry. Co. v. Kansas, 
248 U. S. 276. 


352 


Citizen or Subject? 


3. The referendum provisions of state constitutions 
and statutes cannot be applied, consistently with the Con¬ 
stitution of the United States, in the ratification or rejec¬ 
tion of amendments to it. Hawke v. Smith, ante, 221. 

4. The prohibition of the manufacture, sale, trans¬ 
portation, importation and exportation of intoxicating 
liquors for beverage purposes, as embodied in the Eigh¬ 
teenth Amendment, is within the power to amend reserved 
by Article V of the Constitution. (National Prohibition 
Cases, 253, V. S. 350, 384.) 

We are not interested in the first two propositions 
which the Court negatived. They were that the Con¬ 
gress resolution should have said that two thirds of 
Congress deemed it necessary to propose the Amend¬ 
ment and that the proposals should have been made 
by two thirds of the entire membership of the House 
instead of two thirds of a quorum in each House. 
These are trifling and unimportant matters when over 
one hundred million Americans seek to learn when they 
ceased to be citizens of America and became absolute 
“subjects’’ of governments in America. 

The third proposition negatived has naught to do 
with ourselves, the citizens of America. It deals only 
with the rights of some state citizens as such, where 
their state constitution has a referendum provision. 
P'or our protection against usurpation by any govern¬ 
ment of our own reserved rights or powers, we look 
to our own American Constitution. We have lived 
through its making with the Americans who made it 
to secure individual liberty of themselves and their 
posterity, ourselves, the citizens of America. 

The clear statement of simple fact, expressed in the 
Court’s fourth conclusion, tells us something, which, 
with Madison, we have known since he wrote and 
suggested his Fifth Article, at Philadelphia, on Sep- 


The Challenges That Failed 


353 


tember lo, 1787. Our stay in the “conventions,” 
which made the Fifth Article, has taught us that the 
Americans in them, even Henry and the opponents of 
the Constitution, were fully aware of the fact that the 
Fifth Article provided the constitutional mode in 
which the “conventions” could thereafter exercise the 
existing omnipotence of the citizens of America them¬ 
selves to make any kind of an Article of government. 
The same stay fixed firmly in our minds that every one 
in them knew that the Fifth Article is not a grant of 
any ability from themselves to themselves, from the 
“conventions” named in the Seventh Article to the 
same “conventions” named in the Fifth Article, all 
being the “conventions” of the American citizens as¬ 
sembled to exercise their own omnipotence. 

And so, coming from the only “conventions” of that 
kind yet held, we grasp at once the absolute accuracy 
of the statement in the fourth conclusion of the Court 
in 1920. The mention of the same “conventions” in 
the Fifth Article, a mention made by the “conventions” 
of the Seventh Article, is the sound basis for our 
knowledge that, as the Tenth Amendment expressly 
declares, those “conventions” of the Seventh expressly 
reserved to themselves (the same “conventions” 
named in the Fifth, “the people” of America in the 
Tenth Amendment) their own exclusive ability to 
make national Articles, like the First Article and the 
Eighteenth Amendment. For which reason, we know 
the truth of the Court statement in its fourth con¬ 
clusion, that the power to make the Eighteenth 
Amendment “is within the power to amend reserved 
by Article V.” The exclusive ability of the “conven¬ 
tions” of 1787 and 1788—to make the Article which 
is that new Amendment—is something known to all 


354 


Citizen or Subject? 


who were in those “conventions.” That the ability— 
to make Articles like the First Article and the new 
Amendment —remained exclusively in such “conven¬ 
tions” of the American citizens, because such Articles 
are national and either directly interfere with or are 
the basis for direct interference with individual free¬ 
dom of the American citizen, was also known to every 
one in those “conventions.” That is why the Americans 
in those early “conventions” insisted that the Tenth 
Amendment expressly declare that such exclusive 
ability was reserved to them, “the people” of that 
Amendment, and why the same “conventions” men¬ 
tioned themselves, the “conventions,” in the Fifth 
Article and provided therein the constitutional 
mode of procedure in which that exclusive ability could 
thereafter be exercised by those who had it, the “con¬ 
ventions” of the American citizens. 

Even though this knowledge, which we bring 
straight from the “conventions” which made the Fifth 
Article, be not shared at all by the lawyers of 1920, 
we are aware that it is also the knowledge of the 
Supreme Court. That is why Marshall long ago 
pointed out that, when individual welfare required that 
government should be granted some national powers 
or powers to interfere with individual freedom, “the 
necessity of deriving such powers from the people 
themselves was felt and acknowledged by all.” That 
is why in 1907 the Supreme Court again declared “the 
powers the people have given to the General Govern¬ 
ment are named in the Constitution, and all not there 
named, ... are reserved to the people and can be 
exercised only by them, or upon further grant from 
them/* As the First Section of the new Amendment 
is the exercise and the Second Section is the grant of 


The Challenges That Failed 355 

one of those reserved powers, and as the Fifth Article 
provides the constitutional mode of procedure in 
which it can be exercised or granted by those, who 
alone have it, “the people” of the Tenth Amendment 
and the “conventions” of the Fifth Article, it is very 
natural to read in the same Supreme Court, in the 
National Prohibition Cases, that the ability to make 
the Eighteenth Amendment “is within the power to 
amend reserved by Article V.” 

When the Supreme Court of Marshall’s day knew 
that state “legislatures” could not make Articles like the 
First Article and the Eighteenth Amendment, when 
the Supreme Court of 1907 still knew that only the 
“people” or “conventions” could make Articles of that 
kind, when the Supreme Court of our own day knows 
that the Fifth Article deals only with ^Weserved^^ 
power, we Americans feel that we are to remain free 
men and citizens. We have come from the “conven¬ 
tions” with our own accurate knowledge that the power 
to make the new Amendment or any other Article like 
the First Article “is within the power to amend 
RESERVED by Article V.” But, for the very reason that 
our knowledge is accurate, we know that the power 
to make such Articles was not reserved to the state 
legislatures, who did not have it, but was reserved to 
the “conventions,” who did have it and who were exer¬ 
cising it (in making the First Article) at the very 
moment when they made the Fifth Article. 

We have examined the four conclusions of the Su¬ 
preme Court which deal with any argument presented 
against the existence of the Eighteenth Amendment. 
Those conclusions negative every such argument that 
was presented. But, because every brief assumed and 
asserted that the amending power ^^reserved^* in the 


Citizen or Subject? 


356 

Fifth Article had been ^^granted^^ therein, the four 
conclusions make clear that the Court has yet to hear 
and pass upon the challenge which reads the Eigh¬ 
teenth Amendment out of our Constitution. When 
that challenge is presented by American lawyers, who 
know what American basic law Is and how American 
citizens are constitutionally protected against usurpa¬ 
tion of power by governments in America, there can 
be no doubt of the decision of the Supreme Court. In 
that decision, there will be no conclusion denying the 
most important legal fact in America, namely, that 
governments cannot exercise ungranted power or cre¬ 
ate new government power to interfere with the indi¬ 
vidual freedom of the American citizen. In that 
decision, there will be again the simple statement of 
the undoubted fact that the ability to make the Eigh¬ 
teenth Amendment “Is within the power to amend 
reserved by Article V.” But, In that decision, there 
will be added the plain statement of the Tenth Amend¬ 
ment that such ability was not reserved to the state 
legislatures who never had it, but was reserved to the 
“conventions,” who always had It and still have It. 
And, comparing that future decision (which Is certain 
to come from the Supreme Court) with the decision, 
which merely negatived the four unsound challenges 
which were made to the Eighteenth Amendment, we 
know that the first five conclusions of the latter de¬ 
cision—all the conclusions that have aught to do with 
the existence and validity of the Eighteenth Amend¬ 
ment—merely hold that the existence of the new 
Amendment is not affected by any of these challenges 
which were made. 

With exceeding wisdom In our humble opinion, the 
Court carefully refrains from passing upon or deter- 


The Challenges That Failed 


357 


mining any question except the exact challenges which 
were presented. That Is why no opinion was written. 
When any general statement (seeming to bear upon 
questions not presented or submitted) might come back 
to perplex and annoy the Court in future litigation 
where protected liberty of the American citizen was the 
challenge to the government-made new Article, com¬ 
mon sense and sound reason and the experience of 
generations dictated that no general statement should 
be made. And, as there was but one way to avoid a 
single general statement, no opinion was written. This 
method of deciding those particular litigations, with 
their four unsound challenges, would leave the decision 
itself without even an apparent Influence upon a litiga¬ 
tion In which some real challenge might be presented. 

And so we find the Court merely stating “that we 
reach and announce the following conclusions on the 
questions involved/^ Nothing could make more clear 
that no conclusion Is reached or announced on any 
question not presented by those who urged invalidity. 

The first four conclusions reached and announced 
are conclusions of law against the opposite legal con¬ 
clusions urged by those opponents. The fifth conclusion 
is a conclusion of fact that validity of the Amendment 
is not affected by any of the four propositions advanced 
by the opponents of the Amendment. In other words, 
the first five numbered conclusions, all that deal with 
validity of the Amendment, can be expressed In our 
own words, viz: “Although the proposing Resolution 
did not state that Congress deemed the proposal 
necessary, although only two thirds of a quorum In 
each House (and not two thirds of the membership of 
each House) made the proposal, although the citizens 
of each referendum state have not acted as part of 


Citizen or Subject? 


358 

their respective state legislatures, and although it is 
urged that the Fifth Article reserved abilities do not 
include ability to make an Amendment like the Eigh¬ 
teenth, we decide that none of these things affect the 
validity of the new Article.” 

And, when we make this accurate statement of what 
was decided in those National Prohibition Cases, we 
average Americans, fresh from our education with the 
Americans who found themselves “subjects” and made 
themselves and their posterity free men, have some 
startling facts brought home to us. 

Undoubtedly thousands of lawyers had worked, for 
more than a year, in the preparation of the arguments 
that were made and the briefs that were filed. When 
these amazingly important litigations were reached, 
the arguments lasted for several days. On the ex¬ 
haustive briefs filed against validity, there appear 
twenty-two lawyers, many of them among the leaders 
of the American Bar. On the briefs to support state 
government omnipotence over the citizens of America, 
“in all matters whatsoever,” thirty-five lawyers, headed 
by a former member of the Supreme Court, appear. 

We know, with a knowledge that brooks no denial, 
because it is a knowledge brought from our experience 
with those who made themselves free men and estab¬ 
lished the Constitution to secure that result to them¬ 
selves and to us, that the new Article is not in the Con¬ 
stitution unless at some time prior to 1917, the free 
men of America, all the individual citizens of America, 
became the “subjects” of some state governments. 

It is clear, therefore, that the existence of the 
Eighteenth Amendment has always depended upon the 
correct answer to the question whether the American 
is “Citizen or Subject?” 


The Challenges That Failed 


359 


If we are subjects, the new Article may be in the 
Constitution not made by us but made by governments. 

If we still are citizens, as once undoubtedly we were, 
the new Article cannot be in our Constitution, because 
we have not made the new Article, assembled in our 
“conventions.” 

Where men are citizens, governments cannot exer¬ 
cise ungranted power or create new power to interfere 
with individual liberty. 

In a nation of free men, established by former “sub¬ 
jects” with a dominant purpose that no American 
should ever be the “subject” of any governments, it is 
amazing that one government should propose that 
governments constitute, and it is amazing that forty- 
six governments should attempt to constitute, new gov¬ 
ernment of men—new government power to interfere 
with individual human freedom. 

But most amazing of all, in a nation with the history 
of America, is the fact that, when audacious govern¬ 
ment had so proposed and audacious governments had 
so attempted, the prolonged arguments and voluminous 
briefs of fifty-seven leading members of the American 
Bar never once knew or stated the simple fact which 
made the proposal and the attempt a legal and consti¬ 
tutional absurdity. The fact itself, the one most 
important legal fact in America, was once known and 
“felt and acknowledged by all” Americans. Yet, not 
once in any brief in the National Prohibition Cases, 
was it either known or urged that the “conventions” 
of the Fifth Article are the “conventions” of the 
Seventh Article and that both are the whole American 
“people” of the Preamble and the Tenth Amendment 
and that, therefore, the Constitution expressly reserves 
to the “conventions” of the Fifth Article, the citizens 


36o 


Citizen or Subject? 


of America, their existing and exclusive ability to create 
new government power to interfere with their own in¬ 
dividual human liberty. 

JVhy none of these briefs did make this challenge 
became known to us when Rice of Rhode Island, with 
the silence of his colleagues marking their approval, 
answered the Court that the new Article could not be 
constitutionally made. Why they did not make the 
challenge will be emphasized when we read the leading 
brief against the new Amendment. Over fifty times 
it will admit and state that the Fifth Article is a 
grant** of power to state legislatures from American 
citizens and claim the *^granted** power is a limited 
power and does not include ability^to make an Amend¬ 
ment like the Eighteenth because such Amendment 
takes away the reserved power of a state or political 
entity. Then, to emphasize what it does not know 
about the “conventions” of the Fifth Article and the 
reserved powers of the citizens of America, this brief 
will go on to tell us that there is no constitutional mode 
in which can be made an Article which takes more 
power away from any state; that such an Article may 
only be made, outside any constitutional mode, by hav¬ 
ing the people themselves rescind “the social compact” 
which is their American Constitution and having them 
make “such new compact as they please”; but that such 
new compact, such new Article of that kind, cannot 
“be validly and legally made to come to pass against 
the objection and protest of any state.” All this clearly 
explains why none of the briefers were able to an¬ 
swer correctly the question asked by the Court. How 
could they tell the Court in what way the Eighteenth 
Amendment could be constitutionally made, when all 
of them “knew” that there was no constitutional mode 


The Challenges That Failed 361 

in which the “conventions” of the American citizens 
could make it, and when they “knew” that it could not 
be made, even outside the Constitution, without the 
consent of the citizens of en:ery state? The most im¬ 
portant words in the Fifth Article, “in conventions in 
three fourths thereof,” did not mean to these briefers 
what they meant to the Americans who made the Fifth 
Article or to Madison and Hamilton who wrote the 
Fifth Article and suggested it at Philadelphia. In 
the word “conventions,” they did not recognize the 
Seventh Article “conventions” of the American citizens 
describing themselves by exactly the same word, “con¬ 
ventions,” in the Fifth Article. In the words “In three 
fourths thereof” after the word “conventions,” they 
did not recognize the great security to human freedom 
which we have learned with the Americans who wrote 
and who made the Fifth Article. They did not recog¬ 
nize how the American people, by these words, made 
it their constitutional command that they themselves, 
again assembled In their conventions, by a “Yes” from 
three fourths of their “conventions” and without the 
consent of the Americans In the other “conventions,” 
might withdraw any power granted In the First Article 
and might add any new power to Its enumerated grants, 
whenever they deemed such withdrawal or such addi¬ 
tion would better secure and protect American Indi¬ 
vidual liberty. 

That not one of the briefers did make our challenge 
Is our certain knowledge when we read the four chal¬ 
lenges they did make and which are negatived In the 
first four conclusions of the Court. 

The first two relate to the manner of the proposal 
that governments create government of men In 
America. Who cares how one government makes a 


Citizen or Subject? 



silly proposal? The one important thing is that no 
governments shall attempt to act upon a proposal 
which denies the most important legal fact in America, 
that governments cannot constitute new government 
ability to interfere with individual liberty. 

The fourth challenge that was made is the absurd 
challenge that the Fifth Article does not mention a 
CONSTITUTIONAL mode of procedure in which the citi¬ 
zens of America may again directly grant to their 
government new power to interfere with their own 
individual liberty and in which—far more important 
to the “conventions” which named themselves (the 
“conventions”) in their Fifth Article—the American 
citizens can directly take back any part of the granted 
power of the First Article which they find oppressive 
to their individual liberty. This challenge neither 
knows nor makes any distinction between the state 
“legislatures” and the “conventions” of the American 
citizens or the mention of either in the Fifth Article. 
It is a challenge which has not the knowledge we bring 
from the first “conventions,” the knowledge that “leg¬ 
islatures” are mentioned on account of their existing 
ability to make federal or declaratory Articles and that 
“conventions” are mentioned on account of their ex¬ 
clusive ability to make Articles of any kind. It is a 
challenge which assumes and asserts and is based 
wholly upon the absurd assumption that the Fifth Ar¬ 
ticle is a “grant” of power to make Articles. On this 
absurd assumption of this patently absurd “grant,” this 
fourth challenge, frankly stated in our own words, is 
as follows: “In the Fifth Article, the ‘conventions’ 
grant to the two grantees—the grantors and the state 
legislatures—an identical ability to make new Articles. 
We admit that, if the ‘conventions’ of the Fifth 


The Challenges That Failed 363 

Article could constitutionally make the Eighteenth 
Amendment, the state legislatures can also constitu¬ 
tionally make it. But our challenge is that the ‘grant,’ 
in the Fifth Article, is limited in extent and that neither 
the ‘conventions’ nor the state legislatures can constitu¬ 
tionally make the Eighteenth Amendment.” 

To the “constitutional” lawyers who make this 
challenge, to all who support such challenge, we com¬ 
mend many hours’ study of the statements of Madison, 
who wrote the Fifth Article; of Hamilton, who sup¬ 
ported its introduction at Philadelphia; of Wilson, 
Pendleton, Henry, Iredell, MacLaine, Jarvis, Lee, 
Mason, and the many others, with w^hom we have sat 
in the “conventions” which made the Fifth Article. 
Particularly do we commend a careful reading of the 
reasoning which led to the decision at Philadelphia, in 
1787, that the First Article, because it constituted gov¬ 
ernment of men, must go to the “conventions” named 
alike in the Seventh and the Fifth Articles and could 
not be validly made by the state “legislatures” named 
in the Fifth Article. That decision was based upon the 
unrepealed Statute of 1776, a statute well understood 
in 1787, only eleven years after the Statute itself had 
been enacted as the command of the whole American 
people. Finally, to those who support this fourth 
challenge, we commend a thorough reading of the law 
laid down by Marshall in the Supreme Court. If they 
thus educate themselves as we have educated ourselves, 
they will be able to say with Marshall: “To the forma¬ 
tion of a league, such as was the Confederation, the 
state sovereignties were certainly competent. But 
when, ‘in order to form a more perfect Union,’ it was 
deemed necessary to change this alliance into an effec¬ 
tive government possessing great and sovereign power 


Citizen or Subject? 


364 

and acting directly on the people, the necessity of re¬ 
ferring it to the people and of deriving its power 
directly from them, was felt and acknowledged by all/* 

And, if all shall complete their education with such 
men as Webster and Lincoln, they will never again 
make the mistake of ignoring the vital and important 
distinction in identity between “state legislatures” and 
“conventions” of the American citizens, the distinction 
that the former are never anything but governments 
and each the government agent of the citizens of one 
state, while the “conventions” are the citizens of 
America itself assembled in “conventions” to issue 
their commands to themselves, to their government, 
to the states and to the state governments. The com¬ 
pleted education will enable these lawyers to win future 
litigation against legislative governments who au¬ 
daciously attempt to usurp the exclusive and reserved 
powers of the “conventions” of the American citizens. 

In any of the three challenges negatived by the first, 
second and fourth conclusions of the Supreme Court, 
we have failed to find any suggestion of our challenge, 
namely, that state “legislatures” have audaciously at¬ 
tempted to usurp the exclusive powers reserved to the 
“conventions” which are named in the Fifth Article. 

And now we examine the only other challenge that 
was made, a challenge negatived by the third con¬ 
clusion of the Supreme Court. No challenge could 
more emphatically ignore the protected individual 
liberty of the citizen of America. This challenge does 
not know that American citizens have no government 
save the government of enumerated powers. This 
challenge frankly admits that the Fifth Article is a 
grant to legislatures, each elected by the citizens of 
some particular state, and that three fourths of those 


The Challenges That Failed 365 


legislatures have the omnipotence, which w^as denied to 
the British Parliament, over every individual liberty 
of the American citizen. Like the other challenges 
that were made, like every brief for or against the 
Eighteenth Amendment, this challenge knows not that 
the Constitution is both a federal and a national Con¬ 
stitution and knows not that the state “legislatures” 
never have and never can have aught to do with the 
national aspect of that Constitution. Based on this 
remarkable ignorance, this is the challenge, frankly 
stated in our own words: 

“The state legislatures can make this Eighteenth 
Amendment. The state governments can do what they 
will, so long as they call their action a constitutional 
Amendment, with every reserved right and power of 
the citizens of America. But thirty-six state legisla¬ 
tures are necessary to make anything called a constitu¬ 
tional Amendment. And our challenge is that thirty- 
six legislatures have not made this particular Eigh¬ 
teenth Amendment. In any state, where the refer¬ 
endum exists, the citizens of that state [we note that 
even now the citizens of America are not mentioned] 
are part of the state legislature. In some of these 
referendum states, whose legislatures are included 
among your claimed thirty-six ratifiers for the Eigh¬ 
teenth Amendment, the whole of the state legislature 
has not yet ratified, because the citizens of the state, 
who are part of its legislature, have not yet acted. 
For this reason, that you ignore the rights of the 
citizens of some states, our challenge is that the 
Eighteenth Amendment has not been ratified' by the 
legislative governments of thirty-six states.” 

This particular challenge, like everything in these 
litigations and in the whole history of the supposed 


Citizen or Subject? 


366 

new Amendment, brings into bold relief the one monu¬ 
mental error at the bottom of every thought that the 
new Amendment is in the Constitution, at the bottom 
of the varied absurdities which constantly appear in 
every brief, either for or against validity. 

Without a single exception, the fifty-seven lawyers 
on these briefs base their every argument, no matter 
how those arguments may challenge one another, on 
the ridiculous sheer assumption that the Fifth Article 
is a great power of attorney to the state governments 
from the citizens of America. All these fifty-seven 
lawyers ignore the undeniable fact—mentioned con¬ 
tinually in the “conventions” of the Seventh Article 
which wrote their own name, “conventions,” into the 
Fifth Article—that the Constitution is both federal 
and national. This first mistake, this ignoring of that 
fact, led all of them immediately into the fatal error 
of wholly ignoring the vitally important fact that the 
Fifth Article distinctly names those who already could 
make federal Articles, the state governments, and 
those whose exclusive right it always was and is to 
make national Articles, the people assembled in their 
“conventions.” Only because of these two mistakes, 
the next step comes in the guise of the absurd concept 
that the Fifth Article is a grant of any power of at¬ 
torney, from the citizens of America, either to the “state 
legislatures” or the “conventions.” In this patent ab¬ 
surdity, all fifty-seven lawyers concur. That each of 
them does not see its patent absurdity is due entirely 
to the fact that not one of them states the proposition, 
that the Fifth Article is a grant, in the frankest mode of 
stating it. That frankest way is to state the proposi¬ 
tion in these words: “In the Fifth Article the citizens 
of America, assembled in the ‘conventions’ of 1788, 


The Challenges That Failed 367 

granted to the state legislatures and to themselves, the 
citizens of America, assembled in their ‘conventions,’ a 
quantum of power as attorneys in fact of the citizens 
of America. We fifty-seven lawyers only differ as to 
the extent of the power which the citizens of America 
grant to themselves and to the state governments. 
We, who support the new amendment, contend that the 
citizens of America grant to the state governments and 
to the citizens of America all the power of the citizens 
of America. On the other hand, we, who oppose va¬ 
lidity, contend that the citizens of America grant to 
the state governments and to the citizens of America 
only some of the unlimited power of the citizens of 
America, the very power they were exercising when 
they made the grant which is the Fifth Article.” 

When the common proposition of all those lawyers, 
that the Fifth Article “grants” power to those two 
grantees, is stated in this frank way, its patent ab¬ 
surdity is manifest. Every one of those lawyers knows 
that a grantor never can or does grant to himself either 
all or part of what he already has. Moreover, all 
those lawyers ought to know that the Tenth Amend¬ 
ment expressly declares that the entire Constitution, 
in which is the Fifth Article, grants no power of any 
kind except to the American government at Washing¬ 
ton. Alone and unaided, this simple declaration makes 
it impossible that the Fifth Article grants any power 
to the state governments. Thus, even without the 
certain knowledge we bring from the conventions of 
1788, the state governments disappear from the scene 
as attorneys in fact for the citizens of America in any 
matter. Each of those state governments is left with 
no power it did not have before the Fifth Article was 
made. Not one of them even keeps all of the power 


Citizen or Subject? 


368. 

which it had before 1788. The citizens of America, 
the “conventions” in which they assembled, com¬ 
manded otherwise. “When the American people cre¬ 
ated a national legislature, with certain enumerated 
powers, it was neither necessary nor proper to define 
the powers retained by the States. These powers pro¬ 
ceed, not from the people of America, [the “conven¬ 
tions” named in the Seventh and the Fifth Articles] 
hut from the people of the several states; and remain, 
after the adoption of the Constitution, what they were 
before, except so far as they may be abridged by that 
instrument.” So spoke Marshall from the Supreme 
Court Bench, in 1819, after he had come from one of 
those “conventions” in which he himself had stated: 
“It could not be said that the states derived any powers 
from that system, [the new Constitution then before 
the convention in Virginia] but retained them, though 
not acknowledged in any part of it.” (3 EIL Deb. 
421.) 

Yet every brief of those fifty-seven lawyers bases its 
every argument on the sheer assumption, asserted by 
all, that the Fifth Article is a “grant” to the state 
legislatures which makes them attorneys in fact for the 
citizens of America. No brief can offer and no brief 
does offer the slightest proof in support of the assump¬ 
tion. But no brief asks for proof of the assumption 
or challenges the assumption. On the contrary, every 
brief makes the assumption and asserts it and on it 
rests every argument. 

Because of this monumental error, every brief for 
the Amendment insists that the state legislatures, as 
attorneys in fact for the citizens of America with every 
power of the citizens of America, validly made the 
Eighteenth Amendment. 


The Challenges That Failed 369 

Because of this monumental error, every brief 
against the Amendment asserts that the state legisla¬ 
tures are attorneys in fact for the citizens of America 
but insists that the Fifth Article (the assumed power 
of attorney in a Constitution which expressly declares 
that no power is given to the state legislatures) grants 
'to the state legislatures (as well as to the “grantors” 
themselves) only limited ability on behalf of the prin¬ 
cipal, the citizens of America. On this altogether 
unique argument, it is contended that the limited power 
of attorney does not confer ability to make an Amend¬ 
ment like the Eighteenth. 

Because all briefs make the same monumental error, 
there is no challenge on the ground that the state legis¬ 
latures, not a member of which is elected by the citi¬ 
zens of America, hold no power of attorney from the 
citizens of America to interfere in any way, in any 
matter, with the individual freedom of the American 
citizens. Because all briefs against the Amendment 
make the same monumental error, the fourth challenge 
(which was made and considered by the Court) is based 
upon the heretical doctrine—the heresy being clear 
from what we have heard in the “conventions” where 
we sat—that the Fifth Article does not mention a 
CONSTITUTIONAL mode in which the citizens of 
America, again assembled in their “conventions,” can 
take back from their American government any enum¬ 
erated power of the First Article which they find 
oppressive to their individual rights and freedom. 
And, perhaps most amazing and amusing fact of all, 
because all briefs make the same monumental error, 
the briefs for the Amendment make no effort to sup¬ 
port and the briefs against the Amendment make no 
attempt to challenge the clear paradox, on which the 



370 


Citizen or Subject? 


Eighteenth Amendment depends for its existence, that 
there never has been a citizen of America if It be true 
that the Fifth Article makes the state governments the 
attorneys in fact for the citizens of America with 
unlimited ability to interfere with the individual free¬ 
dom of the citizens of America. Where such unlimited 
ability is in government, men are not “citizens’* but 
“subjects.” 

But we ourselves come from the “conventions” 
where the Americans knew that they entered as free 
men and left as citizens of America, not as “subjects” 
of any governments. Therefore, we need no lawyer to 
tell us—and no lawyer can deny our knowledge—that, 
if the state governments are the attorneys In fact for 
the American citizens and have ability either to Inter¬ 
fere with or to grant power to interfere with the 
individual liberty of the American citizens, or, if any 
governments can Interfere with that liberty on a matter 
not enumerated In the First Article, there never were 
American citizens and the early Americans entered 
their “conventions” free men but left those “conven¬ 
tions” as “subjects” of an omnipotent government. 


CHAPTER XXIV 


GOVERNMENTS CLAIM AMERICANS AS SUBJECTS 

‘‘TS the government of Virginia a state government 
after this government is adopted? I grant that 
it is a republican government, but for what purposes? 
For such trivial domestic considerations as render it 
unworthy the name of a legislature.” (3 EIL Deh. 
171.) So thundered Patrick Henry to the Americans 
assembled in convention in Virginia, while these Ameri¬ 
cans still heard the echo of his charge that the new 
Constitution made the state legislatures “weak, ener¬ 
vated and defenseless governments.” 

But these are the governments which all lawyers of 
1920 “knew” had been made the attorneys in fact for 
the citizens of America, possessors of the supreme will 
in America. These are the governments to which all 
advocates of the Eighteenth Amendment contend that 
the Americans, in the “conventions” with Henry, gave 
the entire omnipotence of the American people to be 
exercised by these governments, without any constitu¬ 
tional restraint. 

The real fact is, although all lawyers of 1920 failed 
to know the fact, that these state governments were 
only named in the Fifth Article, because they already 
had an existing limited ability to make federal Articles, 
an ability not granted by the citizens of America but 
possessed by each of those governments as attorney in 

371 


372 


Citizen or Subject? 


fact for the citizens of its own state. That It was an 
ability not granted by the citizens of America, must be 
apparent when we recall that it was exercised by those 
governments in 1781—seven years before there was 
such a thing as a citizen of America. That the lawyers 
of 1920 neither knew nor realized the Importance of 
this fact, is apparent when we recall that every brief 
of those lawyers asserted that these governments get 
their ability to make Articles by a “grant” in the Fifth 
Article. 

Our knowledge of the nature of every challenge to 
the new Amendment, and our knowledge that each 
challenge involved the assumption that the Fifth Ar¬ 
ticle was a ^^grant’^ to these state governments, is a 
knowledge which is certain from our study of the con¬ 
clusions of the Supreme Court which negatived each 
challenge. 

The certainty is emphasized by our memory of the 
reply of Rice in that Supreme Court, when, without 
one dissent from the challengers, he stated his and 
their conviction that the “conventions” of 1788—the 
challengers all forgetting that those “conventions” 
named themselves in the Fifth Article—provided no 
CONSTITUTIONAL mode of procedure in which their 
own exclusive power could be again exercised to make 
Articles like the First Article and the Eighteenth 
Amendment. 

Let us again emphasize our certainty by a few mo¬ 
ments with the briefs of the challengers. 

Root was their leader. A distinguished public 
leader and considered by many to be the leader of the 
American Bar, there was special reason why he should 
have known the ability of government to make national 
Articles in a Constitution, only when men are “sub- 


Governments Claim Americans as Subjects 373 

jects,” and the inability of governments to make such 
Articles, when men are “citizens.” 

If his brief, or the brief of any challenger, had 
urged this real and invincible challenge, we would have 
found the mention of that challenge in the decision and 
it would not have been a refutation of that challenge. 
That we may confirm-our knowledge that the brief of 
Root, like the brief of every challenger^ did not make 
this challenge, the challenge that the Fifth Article is 
no ^‘granf^ but a mention of two existing abilities and 
a mode of constitutional procedure for the respec¬ 
tive exercise of each, let us read the brief’s own state¬ 
ments of the three challenges it does make. “The 
plaintiff contends that this attempted amendment to the 
Constitution of the United States is invalid (i) be¬ 
cause it constitutes mere legislation, and is, therefore, 
not authorized by Article V of the Constitution, (2) 
because it impairs the reserved police or governmental 
powers of the several'States and their right to local 
self-government, and (3) because it has not been rati¬ 
fied by three fourths of the several States since it has 
not been submitted to the electorate of the States dn 
which the initiative, or the referendum, or both, pre¬ 
vail (assignment of errors Nos. 1-5). These ques¬ 
tions are discussed in points II, III, and IV, respec¬ 
tively. In point I the prior amendments to the Con¬ 
stitution are considered with reference to these con¬ 
tentions, and in point V the justiciability of the 
contentions is maintained.” 

Its first challenge is itself the admission that all 
constitutional ability to change our Constitution is 
ability ^‘granted^^ In the Fifth Article. Moreover, it 
Is the flat denial of any constitutional mode of pro¬ 
cedure In which the citizens of America, by a “Yes” 


374 


Citizen or Subject? 


from three fourths of their assembled “conventions,” 
can enact the legislation which Is Section One of the 
supposed Eighteenth Amendment. 

Its second challenge Is wholly on. behalf of the po¬ 
litical entitles, which are the states. It not only makes 
no claim for the rights of American citizens, but It 
denies any constitutional ability In the American 
citizens to interfere, by changing the American Con¬ 
stitution, with what the American citizens reserved to 
each state and its citizens. 

The third challenge again falls to assert any claim 
on behalf of the rights of the American citizens. It is 
the challenge negatived by the third conclusion of the 
Supreme Court. It Is the challenge that the citizens 
of the State, In some of the states, are part of the state 
legislature. 

If we want further confirmation of our knowledge 
that this brief does not make the real challenge, 
namely, that the Fifth Article is no grant to the sup¬ 
posed grantors and the state governments, we find it 
in the fact that the brief Itself refers over fifty times 
to the Fifth Article as a **granf* of limited ability to 
make Articles. 

If we need further confirmation, we find It In this 
fact. After the Supreme Court had negatived every 
proposition In that brief, its writers made application 
for a reargument. The application was based on one 
ground as far as concerned the validity of the Amend¬ 
ment. That one ground was that the Court had 
written no opinion. From this one fact, the claim was 
made that the Court could not have considered the 
potency of the three challenges which had been urged 
in the brief. Educated with the earlier Americans, we 
believe that each of these three challenges, in its very 


Governments Claim Americans as Subjects 375 

statement, shows why it is unsound, and that no 
opinion was needed to explain its refutation. But the 
nature of the application shows the continued concept 
of the Fifth Article as a “grant.” 

If we look at the other briefs against validity, we 
will find all arguments based on the same monumental 
error that the Fifth Article is a ^^grant^* and that the 
state legislatures are therein named the attorneys for 
the citizens of America, although the latter, as citizens 
of America, never elect a single member in those legis¬ 
latures and the Tenth Amendment expressly declares 
that the Constitution gives no power of any kind to 
the states or their legislatures. On the impossible 
hypothesis of this monumental error are builded the 
most extraordinary arguments. 

In more than one brief, it is urged that, in the Fifth 
Article, the whole people of America made a certain 
number of state legislatures their own attorneys in 
fact to amend the American Constitution. But, urges 
the brief, the American people have no power to 
change the state constitutions, and “therefore, the 
grantees,” the state legislatures, “cannot exceed the 
powers of their principal, the people of the United 
States.” And, the brief goes on, as the people of 
America cannot change a state constitution, neither can 
the attorneys in fact of that whole American people, 
the state legislatures, change it. The ability of the 
people or citizens of America and of ^Uheir” attorneys 
in fact, the state legislatures, is only competent to 
change the Constitution of the citizens of America. 
But this Eighteenth Amendment changes the Constitu¬ 
tion of each state. Ergo, that change is clearly beyond 
the power of the citizens of America and **their^* at¬ 
torneys in fact, the state legislatures! 


Citizen or Subject? 


376 

It will serve no useful purpose for us to dwell 
further upon the briefs against validity. They all 
show the universal conviction that the Fifth Article is 
a “grant” and makes the state legislatures attorneys 
in fact for ourselves, the citizens of America, who 
elect not a single member in the state legislatures. 
Naturally, as this fundamental error is the invincible 
conviction of all counsel against validity before any 
brief is written, none of those briefs mentions such 
simple facts as the fact decided by the Supreme Court 
in Barron v. City of Baltimore, 7 Pet. 243. That de¬ 
cision, by John Marshall, decisively settled the legal 
fact that the Fifth Article grants no power to the 
state legislatures to make the Eighteenth Amendment. 
And, as it also decisively settled that the Fifth Article 
does not give the state legislatures any power what¬ 
ever, it destroys the absurd concept that the Fifth 
Article makes the state legislatures attorneys in fact 
for those who made the Fifth Article, the citizens of 
America, the “conventions” of the Fifth Article and 
the Seventh Article. But lawyers, who start to write 
briefs with the certain (although false) “knowledge” 
that the Fifth Article does make the state legislatures 
attorneys in fact for the citizens of America, neither 
know the meaning of that decision nor state the de¬ 
cision and its meaning and its effect upon the Eigh¬ 
teenth Amendment in the briefs which they write. The 
decision is very clear. We have met it earlier in our 
education herein. It will bear repetition right now, 
when we find fifty-seven lawyers all “knowing” that 
the Fifth Article (despite the declaration of the Tenth 
Amendment) does give power to the state govern¬ 
ments and, by giving it, makes these governments attor¬ 
neys in fact for the citizens of America. 


I 


Governments Claim Americans as Subjects 377 

Barron claimed that a state statute was void because 
it came in conflict with the restriction imposed by the 
Article which is the Fifth Amendment to the American 
Constitution. If the restriction applied to the state 
legislatures and their powers, the statute was clearly 
void. Therefore, as Marshall pointed out, the Court 
had but one question to solve, whether the American 
Constitution (in which is the Fifth Article) granted 
any power to the state governments. If it did, then 
general restrictions in that Constitution, as they clearly 
applied to all powers granted in that Constitution, ap¬ 
plied to the state governments. On the contrary, if 
the Constitution granted no power to the state govern¬ 
ments, general restrictions in the Constitution would 
not apply to the state governments. For which reason, 
the decision of the case itself was to depend on one 
thing alone, whether there was any power granted in 
the entire Constitution to the state governments. If 
there was not, the decision would be against Barron. 

The question thus presented is, we think, of great im¬ 
portance, but not of much difficulty. The Constitution 
was ordained and established by the people of the United 
States for themselves, for their own government, and not 
for the government of the individual states. Each state 
established a constitution for itself, and in that constitution 
provided such limitations and restrictions on the powers of 
its particular government as its judgment dictated. The 
people of the United States framed such a government for 
the United States as they supposed best adapted to their 
situation, and best calculated to promote their interests. 
The powers they conferred on this government were to be 
exercised by itself; and the limitations on power, if ex¬ 
pressed in general terms, are naturally, and, we think, 
necessarily, applicable to the government created by the 
instrument. They are limitations of power granted in the 
instrument itself; not of distinct governments, framed by 
different persons and for different purposes. 


378 


Citizen or Subject? 




It would have been Impossible for Marshall to have 
stated more plainly that the “Instrument,” the Consti¬ 
tution (which contains the Fifth Article), grants no 
powers whatever to the state governments. On that 
fact, the fact being the simple answer to the question 
“of great importance but not of much difficulty,” Mar¬ 
shall decided that the general restrictions (applying 
only to powers granted in the Constitution) did not 
apply at all to the state governments, to whom the 
Constitution granted no power whatever. 

And so we Americans, trying to find the “when” 
and “how” (between 1907 and 1917) we became sub¬ 
jects, cannot find the supposed answer anywhere In the 
briefs against validity. All that we do find of interest 
to us, in those briefs. Is that the briefers, either with 
or without knowledge of the fact, are meeting a claim 
that there never was an American citizen and that the 
American people became “subjects” when they made 
the Fifth Article on June 21st, 1788. 

By reason of our education In the making of the 
Fifth Article, we know the answer to the absurd claim. 
The answer is one that cannot be denied unless there 
are facts which we have not learned In our education. 
Therefore, we go quickly to the briefs of those who 
make the claim, those who upheld the existence of the 
Eighteenth Amendment, to ascertain what are the new 
facts on which they base their claim that there never 
was an American citizen and that the Fifth Article 
made the American people “subjects.” 

These opponents were led by Hughes. In this liti¬ 
gation, he should not have forgotten that there are 
limits to the powers of every government In America. 
In the following January, he appeared In the same 


Governments Claim Americans as Subjects 379 

Court, to prove that there is limit to the power of the 
supreme legislature in America, the Congress. 

That Congress had passed a statute, known as the 
“Corrupt Practices Act.” In it, certain practices, at 
federal primary and other elections, were prohibited 
and made criminal offenses. His client had been tried 
and convicted by a jury as guilty of one of these prac¬ 
tices in a primary election for the nomination to the 
Senate of America. On the appeal to the Supreme 
Court, Hughes urged that, as our American govern¬ 
ment is a government of enumerated powers, inci'- 
dentally a fact which his claim for the state govern- 
ments in the National Prohibition Cases flatly denies, 
Congress could not validly pass the statute, under 
which his client had been convicted, unless the power 
to pass a statute in that particular matter was found 
in some enumerated power in the Constitution. The 
Constitution clearly gave Congress power to pass laws 
concerning “elections” for federal officers. But, urged 
Hughes, the Americans of 1788, the “conventions” in 
the Fifth and Seventh Articles, did not know anything 
about “primary” elections. Therefore, urged Hughes, 
Congress has not the power to make the same thing a 
penal offense at “primary” elections, which Congress 
can make a penal offense at the regular elections. By 
a divided Court, this argument, based on the claim of 
limited power in the supreme legislature to prohibit 
what a candidate for Senator may do, was sustained 
and the conviction was reversed. 

' It is amazing, therefore, to turn to the Eighteenth 
Amendment brief of the same briefer, a few months 
earlier, and to find him contending for his clients 
therein, twenty-four governments of state citizens, an 
absolute omnipotence to interfere with individual free- 


380 Citizen or Subject? 

dom of American citizens on every subject. And It Is 
startling to find, in this brief, audacious denial of any 
right in the Supreme Court even to consider whether 
these governments of state citizens have that omnipo¬ 
tence over the American citizen. 

In the case of the candidate for Senator, it was his 
concept and his claim that the Supreme Court can de¬ 
cide that the supreme legislature in America had not 
the power to make a certain command to candidates 
for seats in the American Senate. This is the doctrine 
that the only government of the American citizens is 
a government of enumerated powers. In the Eigh¬ 
teenth Amendment litigation, the following is his con¬ 
tention, that thirty-six governments of state citizens 
(the inferior legislatures in America) have unlimited 
power, without any constitutional restraint, to make 
commands to the American citizens on any matter 
whatsoever: 

“We submit that the conception involved in the 
bill of complaint, that an amendment duly submitted 
by Congress on the vote of two thirds of each House, 
and duly ratified by the legislatures of three fourths 
of the States, is still subject to judicial review, and may 
be held for naught through judicial action by virtue 
of a process of implied restrictions upon the amending 
power—restrictions which thus set up by judicial 
decree would be unalterable by any constitutional 
process—is a conception of the most extravagant 
character and opposed to the fundamental principles 
of our government. No principle of judicial action 
can possibly be invoked for sustaining such an author¬ 
ity. The propriety and advisability of amendments, 
which are not prohibited by the express exceptions in 


Governments Claim Americans as Subjects 381 

Article V, are necessarily confided to those through 
whose action the amendments are to be made.” 

We are quite accustomed to have men like Anderson 
maintain that governments of state citizens have out¬ 
lawed for the citizens of America a traffic which 
Madison hoped would take deep root everywhere in 
America, a rightful traffic by human beings “so recog¬ 
nized by the usages of the commercial world, the laws 
of Congress, and the decisions of courts.” (Leisy v. 
Harden, 135 U.S. 100.) 

When Americans were fighting on the battlefields 
of the Revolution for human liberty, Walter Butler 
stirred up the House of the Six Nations to make a 
home attack. It was natural, therefore, when Ameri¬ 
cans in 1918 were fighting on the battlefields of 
Europe for human liberty, that Anderson and men of 
his type should stir up the Houses of thirty-six nations 
to make a similar home attack. Americans will prob¬ 
ably always have Butlers and Andersons to stir up 
home attacks, when Americans are away on the battle¬ 
fields. 

But it is a grave matter when one who has sat on 
the Bench of the Supreme Court later contends that 
the Court has no ability even to review an attempted 
effort of the legislatures of state citizens to command 
the citizens of America on a matter not enumerated in 
the First Article. 

From the “conventions” of the early American citi¬ 
zens, we bring the knowledge that it is the bounden 
duty of the Supreme Court to determine that the 
governments of state citizens have no power whatever 
to interfere with the individual freedom of American 
citizens in any matter whatsoever. From those “con¬ 
ventions,” we bring the certain knowledge that the 


382 Citizen or Subject? 

main purpose of the establishment of the Supreme 
Court, as one department of the only and limited gov¬ 
ernment of American citizens, was that the Supreme 
Court might protect every Individual liberty of the 
American citizen from usurpation of power by all gov¬ 
ernments In America. 

Any concept to the contrary Is the most Tory doc¬ 
trine ever stated as American law since July 4, 1776. 
It Is blind to the fact that, by the Constitution, the 
whole American people, “in their aggregate capacity,’’ 
created a new nation of men and set It above the ex¬ 
isting and continued federation of states; to the fact 
that the whole American people made that Constitu¬ 
tion one with national Articles, relating to the govern¬ 
ment of men, and with federal Articles, relating to the 
government of states; and to the fact that the whole 
American people knew and settled that only “conven¬ 
tions” of themselves could make national Articles, al¬ 
though state legislatures, as attorneys in fact for their 
respective states, could make federal Articles; and to 
the fact that the Tenth Amendment names two distinct 
reservees of existing power, “the states respectively,” 
who are the members of the subordinate federation, 
and “the people,” who are the members of the supreme 
nation of men; and to the fact that the Fifth Article 
grants no power whatever but mentions the “state 
legislatures,” who act for the members of the federa¬ 
tion, and the “conventions,” who alone can ever act 
for the members of the supreme nation, when the 
latter are to make a change In their part of the Con¬ 
stitution, the national part. 

But we find the brief of Hughes, like the briefs of 
his associates, actually challenging any right of review 
by the Supreme Court, when the attorneys In fact for 


Governments Claim Americans as Subjects 383 

the states and state citizens, although the states have 
nothing whatever to do with that part of the dual Con¬ 
stitution which relates to the nation of men, actually 
attempt to change the quantum of power (to inter¬ 
fere with their own individual freedom) granted by 
the nation of men to their only government. His chal¬ 
lenge even goes to the extreme of boldly asserting that 
the “propriety and advisability of amendments,” even 
though they infringe upon the individual freedom of 
the members of the nation of men, must be finally de¬ 
termined by the governments of state citizens, which 
have nothing to do with the nation of men which is 
America. His challenge is that the Supreme Court is 
powerless to protect the liberty of the American citi¬ 
zens if thirty-six governments of state citizens decide 
to interfere with that liberty in matters not enumerated 
in the First Article. 

The challenge is exactly the challenge of Lord 
North to the Americans in 1775. It is exactly the 
challenge which the British Parliament would make, 
if we were still its “subjects.” As basic American law, 
it is sheer nonsense. 

When we remember the doctrine of this briefer, that 
there is a limit to the right of our supreme legislature 
to prohibit what a candidate for Senator may do, and 
compare it with this new Tory concept that three 
fourths of the inferior state governments can validly 
interfere with every personal liberty of ourselves, we 
have one or two questions to ask the briefer. Is it his 
thought that the supposed citizens of America made 
their Constitution with the sole intent that the personal 
rights of candidates for Senators should be secure and 
that the number of Senators from each state should 
remain the same ? Is it his thought that the American 


Citizen or Subject? 


384 

citizens, from whose “conventions” we have just come, 
having settled these amazingly Important things about 
Senators, then voluntarily granted omnipotence over 
every individual freedom In America to a fractional 
part of the inferior state governments, twenty-four of 
whom he represented in the litigation of 1920? Is it 
his thought that the whole American people have two 
governments, one the government of enumerated 
powers constituted In the First Article and the other 
the government of unlimited power constituted In the 
Fifth Article ? Is It his thought that his Inferior state 
governments, although all members of all the state 
governments collectively could not enact a statute In¬ 
terfering In the slightest degree with the American 
citizen, can Issue any command whatever to the Ameri¬ 
can citizen, and that the citizens of America must obey 
that command so long as the state governments call it 
an Amendment of the American Constitution? 

It Is our own certain knowledge that, when govern¬ 
ments Issue any command to the citizens of America 
and the command interferes with Individual freedom, 
the maker of the command must show the grant of 
power to make that particular command. It is the 
Alpha and Omega of American law that no govern¬ 
ment has any just power to make any command to the 
citizens of America, except In a matter on which those 
citizens themselves have given that government the 
power to make that particular command. It Is In the 
primer of American constitutional law, that there is 
no government of the citizens of America^ except the 
government at Washington, and that It has no power 
to command the American citizen, interfering with his 
Individual freedom, except in the matters named In the 
First Article. It is admitted by all, even by the writer 


Governments Claim Americans as Subjects 385 

of that brief and his colleagues, that the power to make 
the command which is the First Section of the Eigh¬ 
teenth Amendment, is not enumerated in that First 
Article. When, therefore, this counsel for twenty-four 
of the governments which made that command tells 
us that, after his client governments (at the suggestion 
of our government which could not make the com¬ 
mand) have passed upon the propriety and advis¬ 
ability of the command, we cannot have the Supreme . 
Court even consider the ability of his client govern¬ 
ments to make the command, our indignation is 
mingled with our mirth. 

Our indignation need not be explained. Our mirth 
comes when we think of our needless fear that some¬ 
thing might have happened between 1907 and 1917 by 
which we became “subjects” instead of the citizens we 
had been. Throughout our education we have always 
known that, if the Eighteenth Amendment (a na¬ 
tional article made entirely by governments) is in 
the Constitution, we are “subjects.” We have known 
that no legislative governments, before 1787 and after 
1776, could have made this general command to the 
citizens of America, because, during those eleven years, 
there was no citizen of America and there were no 
governments in the world who could make any general 
command to the American people, interfering with 
their individual freedom on any subject. We have 
known, with certainty, that, if the Americans in the 
“conventions” (where we have sat) knew what they 
were doing and the Supreme Court, for a century, has 
known what they did, there were no governments in 
the world, up to the year 1907, who could make that 
command to the American citizens. We have gone 
everywhere to find what happened, between 1907 and 


386 Citizen or Subject? 

1917, to change the American citizens into “subjects” 
ojf the governments for whom this counsel appears. 
Now, after the fruitless search elsewhere, we are read¬ 
ing his brief to find out what did happen between 1907 
and 1917. His plain answer, as we have already 
sensed, is— “nothing.” 

Our mirth entirely dispels our indignation, when 
we sense his full concept of the nature of that absurd 
' Fifth Article “grant” to his government clients. That 
we may not mistake his concept, the most Tory con¬ 
cept ever stated as law in America since 1776, he 
explains it again and again in his briefs. It is his 
concept that the absurd supposed “grant” gives to his 
client governments, not one member of which is ever 
elected by the citizens of America, unlimited and con¬ 
stitutionally unrestrained power to interfere with the 
individual freedom of the American citizen on every 
matter or, as the Declaration of ’76 put it, in its com¬ 
plaint against the English King and his legislature, to 
legislate for us on all matters whatsoever. 

And our mirth is not lessened when we read, 
in this brief, John Marshall’s full statement of the 
making of the Constitution (with the Fifth Article in 
it) and John Marshall’s clear decision that it was all 
made by the citizens of America, the “conventions” 
of the Seventh and the Fifth Articles. 

No statement of facts could ever be written, which 
more absolutely destroys the concept that the state 
governments have the omnipotence denied to the Eng¬ 
lish Parliament, than the quotation from John Marshall 
which we read in this brief to support that concept. 

Throughout the quotation, with which we are all 
very familiar, Marshall points out that there is a vital 
distinction, amazingly important to individual free- 


Governments Claim Americans as Subjects 387 

dom, between the ability of the ‘‘conventions” (named 
by exactly the same name in the Fifth as well as the 
Seventh Article) and the limited ability of the same 
“legislatures” for which this counsel appeared in 1920. 
In the quotation Marshall points out that, when the 
American citizens are to make a national Article, 
like the First Article and the Eighteenth Amendment, 
there is but one w^ay in which they can make it “safely, 
EFFECTIVELY and wisely,” “by assembling in conven¬ 
tion.” That all of us, including that counsel of 1920, 
may not find any excuse for an assumption that state 
governments can ever make Articles of that kind, 
Marshall dwells at length upon the inability of state 
governments or any governments to make them or any 
Article like them. He tells us that, when the Amer¬ 
ican people make Articles of that kind, in the only way 
in which they can ever effectively make Articles of 
that kind, by assembling in “conventions,” *Uhey act 
in their states. But the measures they adopt do not, 
on that account, cease to be the measures of the people 
themselves or become the measures of the state gov¬ 
ernments.” “From these conventions the Constitution 
derives its wTole authority.” “It required not the 
affirmance, and could not be negatived, by the state 
governments. The Constitution, when thus adopted, 
was of complete obligation and bound the state sov¬ 
ereignties.” 

Up to the last short sentence zve have just quoted 
from the decision so familiar to us, Hughes quotes 
at length and without omission. Flughes is in Court 
for those “state legislatures” and state sovereignties, 
which Marshall’s decision finds to be legislatures and 
sovereignties wholly inferior in ability to the “con¬ 
ventions” of the American people, named in the Fifth 


Citizen or Subject? 


388 

and Seventh Articles by exactly the same name—“con¬ 
ventions.” How does the great lawyer of 1920 find, 
in this Marshall decision, support for the unique idea 
that these state governments are omnipotent over 
every right of the American citizens who sit in those 
“conventions”? His remarkable claim is that the 
state governments he represents have omnipotent 
ability to command or interfere with anything in 
America, except one thing. It is his claim that these 
governments have omnipotent ability to interfere with 
the citizens of America, with the Constitution of 
America, with the government of America, with any¬ 
thing in America, except that they cannot interfere with 
that one thing for which the Revolution was fought, 
the Statute of ’76 enacted and the Constitution estab¬ 
lished. In the view of Hughes, that one thing appar¬ 
ently is the right of every state to have the same 
number of Senators. Our indignation is entirely dis¬ 
pelled when we realize that he sincerely believes this 
nonsense. Our mirth is merely increased when we find 
him quoting, at some length, this decision of Marshall, 
evidently under the impression that the decision sup¬ 
ports the nonsense. 

But, we wonder why, at the particular point which 
we have reached in the Hughes quotation from Mar¬ 
shall, the former puts “stars” instead of the next 
paragraph in the Marshall decision? Certainly, when 
the great lawyer of 1920 has such faith in the omnipo¬ 
tence of his government clients over us their “subjects,” 
it cannot be that there is anything in the missing Mar¬ 
shall paragraph to disturb that faith! Yet, as we read 
the missing paragraph, with which we are quite fa¬ 
miliar, doubt assails us. Is the great lawyer of 1920 


Governments Claim Americans as Subjects 389 

sincere or does he know that the position of his clients 
in relation to the Eighteenth Amendment is nonsense? 

What is the missing Marshall paragraph with which 
we are so familiar? Lo and behold I it is our constant 
companion throughout our education in the days of the 
early Americans. It is the paragraph in which the 
Supreme Court, by Marshall, points out why the Phila¬ 
delphia Convention of 1787 found themselves com¬ 
pelled to send their First Article, with its grant of 
national power like the grant in the Eighteenth Amend¬ 
ment, to the “conventions,” named in the Seventh and 
the Fifth Articles, because the state governments, the 
clients of Hughes, were known and recognized by 
everybody to be without ability to make national Ar¬ 
ticles. In other words, it is the paragraph in which 
Marshall announces what we have learned so clearly 
ourselves, that “to the formation of a league, such as 
was the Confederation [to the making of federal 
Articles] the state sovereignties were certainly com¬ 
petent. But when ‘in order to form a more perfect 
Union,’ it was deemed necessary to change this alliance 
into an effective government, possessing great and 
sovereign powers and acting directly on the people, the 
necessity of referring it to the people [the conventions 
of the Fifth and the Seventh Articles] and of deriving 
its powers directly from them was felt and acknowl¬ 
edged by all.” 

We know this paragraph of Marshall’s, omitted 
from the Hughes brief, to be the epitome of everything 
that we have heard in the “conventions” which made 
the Fifth Article. We remember that even Henry, 
from the very fact that the “conventions” of the 
American citizens were assembled, knew that the then 
proposed Articles did grant power to interfere with 


390 


Citizen or Subject? 


human freedom. And we remember (because he knew 
the inability of state governments ever to make such 
grants) that, on the fact that “conventions” were as¬ 
sembled, he based his charge that the proposed Articles 
were NATIONAL and not federal We remember that 
the Tenth Amendment declares that the entire Con¬ 
stitution, including the Fifth Article, gave no power of 
any kind to those state governments. And so we know, 
what Henry knew, that the state governments did not 
have, and that the Fifth Article did not give them, any 
ability to make NATIONAL Articles, like the First Ar¬ 
ticle and the Eighteenth Amendment. 

For which reason, we cannot (looking at the matter 
purely from the standpoint of lawyer’s attitude to his 
government clients) blame Hughes for putting the 
stars in his quotation from Marshall. 

Eager to remain free citizens, eager to have all gov¬ 
ernments recognize that we are not “subjects,” we 
ourselves commend, to the writer of that brief and to 
all who uphold the Eighteenth Amendment, the entire 
decision of Marshall in M’Culloch v. Maryland. For 
instance, we commend this clear statement of basic 
American law: 

If any one proposition could command the universal 
assent of mankind [except those for the validity of the 
Eighteenth Amendment], we might expect it would be 
this:—That the government of the Union, though limited 
in its powers, is supreme within its sphere of action. This 
would seem to result necessarily from its nature. It is 
the government of all; its powers are delegated by all; it 
represents all, and acts for all. Though any one state may 
be willing to control its operations, no state is willing to 
allow others to control them. The nation, on those sub¬ 
jects on v/hich it can act, must necessarily bind its com¬ 
ponent parts. 


Governments Claim Americans as Subjects 391 

Among other things, this statement, itself but a 
repetition of everything that we have learned by our 
experience with early Americans, emphasizes the im¬ 
portant fact that the nation, which is ourselves, has 
but one government, the government “limited in its 
power.” Which fact clearly demonstrates that the 
state governments, not being that one government of 
“limited powers,” are not the attorneys in fact for the 
citizens of America, in any matter whatsoever, and 
cannot command us, as they attempt to do in the First 
Section, or grant power to command us, as they at¬ 
tempt to do in the Second Section of the Eighteenth 
Amendment. 

Again this same decision of Marshall holds clearly: 
“In America, the powers of sovereignty are divided 
between the governments of the Union and those of 
the State.” The claimed ability of the Flughes gov¬ 
ernment clients, their claimed ability to make the 
NATIONAL new Article in our Constitution, rests en¬ 
tirely upon the absurd doctrine that, above the two 
sovereignties which Marshall names, there is an om¬ 
nipotent legislative sovereignty, without any constitu¬ 
tional restraint, the sovereignty of three fourths of the 
very state governments which Marshall mentions. 

In the same M’Culloch v. Maryland, Marshall pays 
a tribute to an accurate knowledge, which we have 
acquired in our education with the early Americans. 
It is the knowledge that everything in the Constitution 
denies any ability in even all the states as such, or in 
all the state governments, each of which is never any¬ 
thing but a government of the citizens of one state 
and their attorney in fact as state citizens, to alter in 
anyway the national part of our Constitution (which 
Constitution is both national and federal) because the 


392 


Citizen or Subject? 


NATIONAL part relates to direct interference with the 
individual freedom of the American citizens. This is 
his tribute to the truth of the knowledge which we have 
acquired. He says that there is “a principle which so 
entirely pervades the Constitution, is so intermixed 
with the materials which compose it, so interwoven 
with its web, so blended with its texture, as to be in¬ 
capable of being separated from it without rending it 
into shreds. This great principle is, that the Consti¬ 
tution and the laws made in pursuance thereof are 
supreme; that they control the Constitution and laws 
of the respective states and cannot be controlled by 
them.” 

And so we average Americans find naught but en¬ 
couragement in the brief of Hughes. From its 
quotations, from its every statement, we learn that we 
have known all the facts, before we read it, and that 
we are free citizens and not “subjects.” In that brief 
of the champion of champions of the governments that 
“made” the new national Article, we learn that there 
are no new facts on which to base the claim that we, 
the whole people of America, have another govern¬ 
ment besides the government of enumerated powers, 
the claim that we are “subjects” and that our new 
omnipotent Parliament wears the aspect of thirty-six 
inferior governments, each elected by the citizens of 
a nation which is not America. 

In the brief of this champion, we find no pretense 
that there is any support for this weird claim. On the 
contrary we find the whole claim depending entirely 
upon the sheer assumption—asserted as if to state it 
was to state an axiom—that the Fifth Article is a 
“grant,” wherein the “conventions” grant to the 
grantors and to the state governments ability to excr- 


Governments Claim Americans as Subjects 393 

cise omnipotence over the American citizens, ability 
to interfere with their individual freedom, in any 
matter whatsoever. 

In his brief, Hughes emphatically asserts the truth 
that “the people never become a legislature.” Yet, the 
basis of his whole argument is that what “the people” 
of the Tenth Amendment expressly reserved to them¬ 
selves may be given away by the “legislatures” of the 
states, although the “states” are an entirely different 
reservee in the Tenth Amendment. He does not know, 
what all knew when the Fifth Article was made, that 
the “conventions,” who made it and who are named 
in it, meant “the people” themselves. He does not 
know the tribute of Madison, in the Virginia conven¬ 
tion which ratified the Fifth Article, to the American 
“conventions” in which the people themselves directly 
constituted new government of men; “Mr. Chairman: 
Nothing has excited more admiration in the world 
than the manner in which free governments have been 
established in America; for it was the first instance, 
from the creation of the world to the American Revo¬ 
lution, that free inhabitants have been seen deliberat¬ 
ing on a form of government, and selecting such of 
their citizens as possessed their confidence, to deter¬ 
mine upon and give effect to it.” (3 Ell. Deb. p. 616.) 

Hughes does not know, as Story did, that the drafter 
and the makers of the Fifth Article put into it the 
lessons of their own experience in the making of 
national Articles, by the “conventions” of 1776, and 
in the making of federal Articles by the state “legis¬ 
latures” between 1777 and 1781. “It is wise, there¬ 
fore, in every government, and especially in a Republic, 
to provide means for altering and improving the fabric 
of government as time and experience or the new 


394 


Citizen or Subject? 


phases of human affairs may render proper to promote 
the happiness and safety of the people. The great 
principle to be sought is to make the changes prac¬ 
ticable, but not too easy; to secure due deliberation 
and caution; and to follow experience^ rather than to 
open a way for experiment suggested by mere specu¬ 
lation or theory.” (2 Story on the Constitution, 
Sec. 1827.) 

For all of which reasons, Hughes and his associates, 
although they might be certain that the people never 
became the legislature, were not aware that, to the 
Americans who made the Fifth Article, its “conven¬ 
tions” were “the people” of the Tenth Amendment. 

Naturally, we are not surprised to find a briefer who 
ignores this fact, possibly the legal fact in America 
most important to individual liberty, also indulging in 
the monumental error of the thought that these “con¬ 
ventions,” in their Fifth Article, made a grant, to them- 
selves and to his clients, of equal omnipotence over 
themselves, the citizens of America. We recognize 
that, if the Article was such a grant to his clients, the 
grant would have been the greatest grant ever made 
in the history of mankind. We recognize that it would 
have been a grant by three million free men, four years 
after the war by which they had become free men, 
surrendering to governments absolute control of every 
individual liberty and making themselves absolute 
“subjects.” 

We know that Hughes did maintain that the one 
government created by or given any power in the Con¬ 
stitution, in which is the Fifth Article, had not power 
to forbid a candidate for Senator to do what he did. 
It is interesting and instructive to know that the same 
lawyer holds, as an axiom which needs no proof, that 


Governments Claim Americans as Subjects 395 

the same Constitution gave unlimited ability to his 
client governments to interfere with every individual 
liberty of the Americans who are not candidates for a 
Senatorship. 

We have the word of the man who wrote the lan¬ 
guage of that Fifth Article that it is merely “a mode of 
procedure” in which may be exercised either the exist¬ 
ing unlimited ability of ourselves in “conventions” or 
the limited ability of the state governments to make 
federal Articles. We recognize, no one who reads it 
could recognize otherwise, that the Fifth Article, out¬ 
side of two exceptions to constitutional exercise of 
existing abilities to make Articles, contains nothing but 
procedural provisions. This knowledge we brought to 
the reading of the Hughes brief, after we had acquired 
the certainty in our education with the Americans who 
made the Fifth Article. Then we read this brief of 
the champion of champions for the validity of the 
supposed new Article and found therein the sheer 
assumption, as an axiom which needed no proof, that 
the Fifth Article, with nothing but its procedural pro¬ 
visions, was a grant of omnipotence to his government 
clients over ourselves! 

Imagine, therefore, our amazement and our amuse- 
ment, in the same brief, to find this clear echo of the 
statement of Madison and of our own knowledge, this 
accurate and complete statement of exactly what the 
Fifth Article contains: “Article V, apart from pro¬ 
cedural provisions, contains two limitations of the 
power to amend, as follows: ‘Provided that no Amend¬ 
ment which may be made prior, etc.’ ” 

If, apart from procedural provisions,*^ the Article 
has nothing but “two limitations” of existing abilities 
to make Articles, where does he or anyone find in it 


396 Citizen or Subject? 

the greatest “grant” known to the history of man¬ 
kind? 

When this briefer made his argument for his client 
who had been a candidate for Senator, he had no attack 
to make upon the procedure in which Congress had 
passed the Corrupt Practices Act. When he went to 
ascertain whether Congress had the power to make 
that command, about “elections,” he did not look for 
the power in any “procedural provisions,” which pre¬ 
scribe how Congress should exercise its ability to make 
commands. 

If this briefer or any lawyer were asked, on behalf 
of a client, to accept a bill of sale from an alleged 
attorney in fact of the owner of a cow, he would not 
seek, in any procedural provisions which prescribed 
how an attorney in fact can execute an instrument for 
his principal, to find the authority of the alleged at¬ 
torney to sell the cow. 

Why then, in an Article with naught but procedural 
provisions and two limitations on power to make 
Articles, do he and all his associates seek to find, and 
assert that they do find, grant of authority to the in¬ 
ferior governments of state citizens to give away 
every liberty which the citizens of America hold most 
dear? 


CHAPTER XXV 


CITIZEN OR “eighteenth AMENDMENT”? 

TT is our invincible knowledge that the Fifth Article 
is not a power of attorney to any one to act for 
us, the citizens of America, in regard to any individual 
right which the American citizen has. In our capacity 
as American citizens and in “conventions” of the very 
kind named in that Fifth Article, we gave the only 
power of attorney, which we have ever given to any 
government to act for us in making commands to in¬ 
terfere with any of our individual, rights. That power 
of attorney is the First Article. We made it in the 
same “conventions.” In it, we gave to our Congress 
our only power of attorney of that kind. In it, with 
futile effort to keep modern “constitutional thinkers” 
from monumental error, we said, at the very beginning 
of the one Article which is our only power of attorney, 
that to our Congress alone the Constitution gives any 
powers to make commands that interfere with our 
individual rights. “All legislative powers herein 
granted shall be vested in a Congress, etc.” (Art. 
I, Section i. U.S. Cons.) 

In those same “conventions” (named in the Fifth 
Article) we insisted, again in futile effort to keep 
modern “constitutional thinkers” from monumental 
error, that there be written the exact declaratory state¬ 
ment that the entire Constitution gave no power (to 

397 


398 Citizen or Subject? 

act for us, the citizens of America, in any matter) to 
any donee except our new general government, the 
government of the First Article enumerated powers. 
And, in those “conventions,” we insisted that there be 
written into that Constitution the accurate declaratory 
statement that all powers to act for us in any matter, 
except the powers of that kind we gave to that one 
limited general government, we retained exclusively to 
ourselves, the citizens of America, that they might be 
exercised only by ourselves or upon further grant from 
ourselves. Those two important declaratory state¬ 
ments were written into that Constitution in the shape 
of the Tenth Amendment. 

That we ourselves might have a CONSTITUTIONAL 
mode of procedure in which constitutionally we could 
make that future exercise or further grant of those 
powers which we reserved to ourselves, we named our¬ 
selves—the “conventions” of the kind in which we 
sat—in the Fifth Article and provided therein the 
CONSTITUTIONAL mode in which we could again do 
exactly what we were then doing in the same kind of 
“conventions.” It was impossible for us in those con¬ 
ventions, “being a people better acquainted with the 
science of government than any other people in the 
world,” to anticipate that modern “constitutional 
thinkers” should make the ludicrous mistake of in¬ 
ferring, from that mention, that we—the “conven¬ 
tions”—granted to ourselves—the “conventions”—all 
or some of the very power we were then exercising in 
those “conventions.” Nor did we anticipate, inasmuch 
as we (in those “conventions”) never forgot that this 
new Constitution was to be federal as well as national, 
that modern “constitutional thinkers” would make an¬ 
other monumental error in assuming that a similar 


Citizen or “Eighteenth Amendment”? 399 

mention of the existing ability of state legislatures (the 
ability to make federal or declaratory Articles) was a 
grant to those governments of our own power to make 
national ones. Even if we had possessed (In those 
“conventions”) the vision to see the future that was 
1920, we would have felt that the Statute of ’76, the 
opening words of the First Article and the explicit 
declarations of the Tenth Amendment made any such 
error impossible for modern “constitutional thinkers.” 

Yet, one or more of such errors are the basis of 
every argument In every brief of the fifty-seven lawyers 
of 1920. 

They are the basis of the Root briefs and the other 
briefs against, as they are the basis of the Hughes 
briefs and the other briefs for, the validity of the sup¬ 
posed new Amendment. Not a single one of the briefs 
fails to assume, without the slightest foundation, that 
the state governments, not a member of which Is 
elected by the citizens of America, are attorneys in fact 
for the citizens of America. Wherever one brief 
differs from another In this respect, it Is only In urging 
some difference In the extent of the power of attorney 
made to those governments by the citizens of America 
in the Fifth Article. 

For which reason, we, who have come from the days 
of those early Americans, strong In the knowledge that 
we are citizens and not “subjects,” are now satisfied 
that none of these modern “constitutional thinkers” 
can disturb our certain knowledge. It is a matter of 
no concern to iis that some of them, because they did 
not have our knowledge, failed to win their litigations 
for their clients. It is, however, a matter of great 
concern to us that supporters of the Eighteenth 
Amendment should be found maintaining, as if it was 


400 Citizen or Subject? 

an axiom needing no proof, that we are “subjects” of 
the governments they represented. 

We need spend very little further time in the briefs 
of those who so maintain. We have no patience with 
their Tory concept of the relation of men to govern¬ 
ments. We KNOW that Tory concept never has been 
American law since the Statute of ’76. But it would 
not be proper to leave their briefs without one glance 
at some of their heresies, which are flatly contradicted 
by everything we have learned in our education. As 
a matter of fact, not one of these heresies can stand 
accurate and simple statement without exposing its own 
absurdity. 

Some of us are familiar with the book known as 
“The Comic Blackstone.” We have thought of it often 
as we read the briefs of those for validity of the new 
Amendment—the government constitution of govern¬ 
ment power to interfere with the individual freedom 
of American citizens. There is, however, a vital dif¬ 
ference between the book and those briefs. The book 
was a conscious effort to be humorous. Unconscious 
humor has never failed to surpass conscious and in¬ 
tended humor. 

We recall our search to know “when” and “how,” 
between 1907 and 1917, we became subjects. We re¬ 
member the first glance at the briefs of 1920. We 
remember the tribute of one to the simple truth that 
“the people do not become a legislature. ... As 
well confound the creator and the creature—the prin¬ 
cipal and the agent through which he acts.” We 
wonder why the author of this tribute did not challenge 
the monumental error of the concept that the Fifth 
Article (when it mentions the “conventions” of the 
American citizens, the greatest principal in America, 


Citizen or ^‘Eighteenth Amendment”? 401 

and also mentions the state governments, each as the 
attorney in fact of another and distinct principal, the 
citizens of Its own state) is a grant from the great 
principal to Itself and these mentioned attorneys In 
fact of others. But we now know why the author of 
the tribute made no such challenge. He Is Hughes, 
who rests his entire argument on the monumental 
error. We remember, as we glance at the briefs, that 
another one challenged the doctrine on which Shep¬ 
pard proposed that the Eighteenth Amendment be 
sent to governments of state citizens, that such govern¬ 
ments might Interfere with the freedom of American 
citizens. We remember the Sheppard doctrine as the 
Calhoun heresy that the states, political entities, made 
the Constitution which we, the citizens of America, 
actually made In our “conventions.” We remember 
how refreshed we were to find, in our first glance at 
the briefs, this statement: “The Constitution Is not a 
compact between states. It proceeds directly from the 
people. As was stated by Mr. Chief Justice Marshall 
in M’Culloch v. Maryland, 4 Wheat, 316, &c.” We 
remember our thought, when we had just come from 
those “conventions,” to find this statement in that 
brief. We remember how we anticipated this briefer 
telling the Court why the states or their governments, 
who could not make the First Article, were Incompe¬ 
tent to make the only other supposed grant of power 
to Interfere with our liberty, the Eighteenth Amend¬ 
ment. Now that we have finished with the briefs of 
1920, we recognize how absurd was our expectation. 
The statement that the states, which are mere political 
entities, did not make the Constitution, the quotation 
from Marshall, supporting this truth and showing that 
the states did not make It because the states and their 


402 


Citizen or Subject? 


governments cannot make national Articles, are both 
from the brief of this same Hughes, the champion of 
his government clients and their claimed ability to 
make national Articles. 

We find some considerable amusement in comparing 
the speech of Sheppard, proposer of the Eighteenth 
Amendment, and the brief of Hughes, champion of 
the Eighteenth Amendment. If government was to 
carry through a successful revolution against free men 
and acquire the omnipotence denied to the British Par¬ 
liament, it would have been well for the proposers of 
the Revolution and the champions of it to have agreed 
at least upon one fact, whether the states, political 
entities, or the citizens of America, in their “conven¬ 
tions,” made the Constitution—which was to secure 
the American citizen against all usurpation of power 
by governments. 

But, once we sense the certainty that this revolution 
of government against free citizens cannot be success¬ 
ful, once we realize the certain decision of the Supreme 
Court when the real challenge is made to the disguised 
revolution, we can forget the attempted tragedy of 
human liberty. Then we shall know that the entire 
story of the last five years is an inexhaustible mine of 
humor. And, among the briefs of those who cham¬ 
pioned this revolution of government against human 
being, we shall find no mean rival (in unconscious 
humor) to any other part of that story. 

We recall, at our first introduction to all the briefs, 
the epitome of all the knowledge we had just brought 
from the early conventions: “There is only one great 
muniment of our liberty which can never be amended, 
revoked or withdrawn—the Declaration of Independ¬ 
ence, In this regard, it ranks with the Magna 


Citizen or “Eighteenth Amendment”? 403 

Charta.” We recall how pleased we were to know 
that the Court must hear another champion of indi¬ 
vidual liberty, who also must have come from the 
“conventions” in which we had sat. We recall how, 
in his brief, this truthful tribute to the Statute of ’76 
was immediately followed by the quotation from that 
Statute, which Includes these words: “That to secure 
these Rights, [the Rights of men granted by their 
Creator] governments are Instituted among men, de¬ 
riving their just powers from the consent of the gov¬ 
erned. That whenever any Form of Government be¬ 
comes destructive of these ends, it is the Right of the 
People to alter or to abolish It, and to Institute new 
government, laying Its foundation on such principles 
and organizing Its powers In such form, as to them 
shall seem most likely to effect their Safety and 
Happiness.” 

In our eager anticipation to hear his argument and 
see his brief, how were we, fresh from the “conven¬ 
tions” In which sat some of the men who had written 
that Statute eleven years earlier, to know that the 
briefer understood their language to read as follows: 
“That to secure these rights of human beings, granted 
by their Creator, governments are Instituted among 
men, deriving their just powers from the consent of 
the state governments. That whenever any Form of 
Government becomes destructive of these ends, it Is 
the right of the state governments to alter or abolish 
it, and to institute new government, laying its founda¬ 
tion on such principles and organizing Its powers In 
such form as to the state governments shall seem most 
likely to effect the welfare of those who control the 
state governments.” 

That this is the meaning of that Statute to this 


404 


Citizen or Subject? 


briefer, we may realize when we know that the tribute 
to the Statute and the quotation from the Statute are 
in the brief of Wheeler, counsel for the political or¬ 
ganization which managed the new revolution of gov¬ 
ernment against people and dictated the proposal that 
governments should constitute new government of men 
in America. Now we grasp why this briefer said that, 
in the fact that the Declaration of Independence could 
“never be amended, revoked or withdrawn,” the 
Statute of ’76 “ranks with the Magna Charta.” To 
this briefer, the Statute of ’76, like the Great Charter 
of old, is the ruler government dispensing privileges 
to Its subjects, the people. That Is why this briefer, 
with his Tory concept of the relation of government 
to human beings, does not know that the Statute of 
’76 is the revocation of the principle on which Magna 
Charta rested, the doctrine that the government is the 
State and the people are its assets. 

This briefer, like all his associates^ does not know 
the great change which the American people made In 
the picture of American government. We are all fa¬ 
miliar with the picture, “His Master’s Voice.” When 
those Americans were born, from whose “conventions” 
we have come, the listener In that picture was “the 
people” of the Preamble and the Tenth Amendment 
in our Constitution. The voice of the master was the 
voice of government. When those Americans died, 
they had changed the picture. The listener had become 
the governments in America, the voice of the master 
had become “the people” of America, Its 'citizens. The 
new painting of the picture was on July 4, 1776. 
That the listener might never deface the truth of the 
new picture, the Constitution of 1787 was proposed 
at Philadelphia and later made by the master in the 


\ 


I 


Citizen or “Eighteenth Amendment”? 405 

picture. The proposal of Wheeler and his associates 
and the action of governments on that proposal are 
the unlawful attempt to change the picture back to 
what it had been before the Statute of ’76. 

If time permitted, our sense of humor would keep 
us long with the briefs of Wheeler and his associates. 
It was their thought that the doctrine of Christ could 
be made a better Christianity by a substitution of the 
prohibition of Mohammed for the temperance of 
Christ. This natural modesty on their part made 
certain that we would find, in the Wheeler brief, this 
tribute to the good intentions of the Americans of 
those early “conventions,” accompanied by an humble 
tribute to the much greater wisdom of the briefers. 
“The people, under this form of government may, of 
course, do unwise things. This is the alleged danger 
of a republican or democratic form of government. 
If the electorates are not intelligent, moral and patri¬ 
otic, our government will fail. Our forefathers took 
that chance in choosing a form of government that was 
controlled entirely by the people. History proves that 
they builded more wisely than they knew. The people 
have kept step with advancing civilization under the 
same construction of our Constitution. This last ad¬ 
vance in the prohibition of the beverage liquor traffic, 
which is one of the greatest evils that ever cursed 
humanity, is additional evidence of the wisdom of our 
forebears. It is generally recognized as the greatest 
piece of constructive legislation that was ever adopted 
by a self-governing people.” The finest passage in 
the “Comic Blackstone” does not approach this in its 
excellence as unconscious humor. 

Educated with “our forefathers” who “took that 
chance in choosing a form of government that was con- 


Citizen or Subject? 


406 

trolled entirely by the people/^ we call the attention of 
Wheeler to one of his many mistakes by rewriting his 
next sentence, as he should have written it: “History 
proves that they builded more wisely than Wheeler or 
his associates knew or are able to understand.” 

Our forefathers knew that, wherever men are citi¬ 
zens, neither state governments nor any governments 
are “the people” or can surrender rights of “the 
people” or can constitute new governments of “the 
people” Interfering with their individual freedom and, 
therefore, when those “conventions” of old did choose 
and establish a form of government “that was con¬ 
trolled entirely by the people,” they were not stupid 
enough to think that the American government would 
be that kind of a government If It could be. controlled 
entirely by legislatures, which never are the people. It 
is rather ridiculous to find Hughes, associate champion 
of Wheeler for the new Amendment, contending that 
the people never are the legislature, while Wheeler con¬ 
tends that a government is controlled entirely by the 
people when it Is controlled entirely by legislatures. 
But, it Is to be expected, when men work in association 
on a common unsound basis, that one champion should 
frequently contradict another as to fact, and that even 
the same champion should often contradict himself as 
to fact. 

And so we find the Wheeler brief stating that the 
new Amendment, made entirely by governments with¬ 
out any authority from the people about whom he 
prates, “Is generally recognized as the greatest piece 
of constructive legislation that was ever adopted by a 
self-governing people”; and we turn over the pages 
of the brief and we find the remarkable proposition 
that these state legislatures, when making the Eigh- 


Citizen or “Eighteenth Amendment”? 407 

teenth Amendment, were not legislating^ but were 
“a body of representatives sitting in a conventional 
capacity.” Of course, we now learn, by this latter 
statement, that the greatest piece of “constructive 
legislation” the world ever knew was not legislation 
at all. But we also learn a more important thing. It 
would have been of great advantage to the British 
Parliament in 1765, if it had only known the Wheeler 
concept of our American security for human freedom. 
Think how remarkable it would have been to have 
passed a Stamp Act which would have been universally 
respected and obeyed by the American people of that 
time! All the British Parliament should have done 
was to announce: “This is not passed by us as a legis¬ 
lature. In issuing this command to the American 
people, we are a ‘body of representatives sitting in a 
conventional capacity.’ ” Having exactly the same 
attitude mentally as Lord North in 1775, this Wheeler 
would have been a better Minister for the English 
King. He would have been able to keep for him the 
American “subjects” of the British Legislature. 

“Article V itself shows that the representative or 
convention idea was in the minds of the framers of the 
Constitution. If the legislatures of two thirds of the 
states should apply to Congress, then Congress would 
be obliged to call a convention for proposing Amend¬ 
ments to the Constitution. Then, also, when it came 
to the matter of ratification, this question could be 
considered by conventions in the various states. A 
review of the proceedings of the constitutional conven¬ 
tion, as well as a study of the political and govern¬ 
mental bodies at the time at which the provision pro¬ 
viding for amending the federal Constitution was 
adopted, revealed the fact that these men thought in 


Citizen or Subject? 


408 

terms of conventions . . . and that the aear intent 
of the framers was to ratify proposed amendments 
by bodies sitting in the capacity of conventions. The 
Court will not find any able exponent of the theories 
of government of that time, however, who even as¬ 
serted that the people could be considered as a portion 
of the legislature. This can be shown most clearly by 
an examination of the proceedings of the constitutional 
convention, as reported by Mr. Madison and particu¬ 
larly by examining the various proposals advanced 
in that convention for the ratification of the Con¬ 
stitution.” 

We recognize immediately, in this extract from the 
briefs of 1920, our own exact knowledge brought from 
those “conventions.” And, when this briefer chal¬ 
lenges the existence of the Eighteenth Amendment on 
the ground that the people who made it showed “in 
Article V itself” that “the convention idea was in the 
minds of the framers” and “when it came to the mat¬ 
ter of ratification,” a “Yes” or “No” was to be consid¬ 
ered by “conventions” in the various states, we are 
amazed to find no upholder of the Eighteenth Amend¬ 
ment replying to this attack upon its validity. The 
challenge to validity again and again touches on the 
monumental error of the Tory concept behind all claim 
to validity. The challenge puts its finger at once upon 
the absurd assumption, on which the Eighteenth 
Amendment wholly depends for existence, the assump¬ 
tion that the Americans we have just left ever consid¬ 
ered the “people” as the “legislature” or the “legis¬ 
lature” as the “people.” The challenge emphasizes 
the fact we all know, that the “conventions” knew that 
“conventions” were the “people” and that “legisla¬ 
tures” never were the “people.” But we are mistaken 


Citizen or “Eighteenth Amendment”? 409 

In believing that this clear challenge was not met by 
some “constitutional thinker” in his effort to uphold the 
new supposed national Article, made by the govern¬ 
ments or “legislatures” which the old “conventions” so 
well knew were not the “people.” In the brief of one 
champion of the new national Article, we find this 
clear reply to the challenge. And we notice how the 
reply is not mere assertion. No one can deny the tre¬ 
mendous “support,” in history and in decision and in 
the Fifth Article itself, for the full reply that the Fifth 
Article states definitely that “the only agency which 
Is authorized to ratify the Amendment is the state 
legislatures I” 

We have only one comment to make on the challenge 
Itself and the destructive reply to it, that the state 
legislatures are the “only agent” authorized by the 
Fifth Article to amend our national Constitution. It 
Is an Interesting comment. Both the challenge and the 
reply are from the brief of Wheeler, counsel for the 
political organization which directed that governments 
make this new national government of men. 

This Wheeler believes that the Statute of ’76 is “one 
great muniment of our liberty which can never be 
amended, revoked or withdrawn.” Fie says so In his 
brief. Fie also maintains that his state governments, 
not one of their members elected by us as citizens of 
America, have omnipotent power over our every lib¬ 
erty, except that they cannot change the number of 
senators from each State. At one point In his brief he 
“proves” overwhelmingly that the citizens of America 
universally demanded his new Article, the Eighteenth 
Amendment. His proof is—and we cannot deny the 
fact which he asserts as proof—that. In the year 1918, 
when Americans were in the Argonne Forest in France, 



410 


Citizen or Subject? 


four thousand seven hundred and forty-two Tories in 
forty-five state legislatures said “Yes” to this new 
command to the one hundred million American citizens 
on a subject not among the matters enumerated in our 
First Article. That his “proof” might be perfect 
(for the claim that the making of the command was 
demanded by the citizens of America) he fails to men¬ 
tion the fact that not one of those four thousand odd 
Americans, who were not the Americans in the Ar- 
gonne or in our training camps preparing to fight for 
human liberty, was elected for any purpose by the 
citizens of America. 

Reflecting upon this briefer’s admiration for the 
Statute of ’76 and upon his knowledge that the “legis¬ 
latures” never are the people, while the “conventions” 
of the Fifth Article are the “people,” we wonder If 
he ever read a certain statement of the early Ameri¬ 
can who wrote the Statute of ’76. It Is a statement 
from Thomas Jefferson quoted by Madison, author of 
the Fifth Article, when he was urging the American 
people or “conventions” to make that Fifth Article. 
Jefferson was talking about a constitution. In which 
“all the powers of government . . . result to the 
legislative body,” as they result (under the modern 
assumption as to what the Fifth Article says) to the 
state governments, the new omnipotent legislature of 
the American people. This Is what Jefferson had to 
say, what Madison approved: “The concentrating 
these In the same hands. Is precisely the definition of 
despotic government. It will be no alleviation, that 
these powers will be exercised by a plurality of hands, 
and not by a single one. One hundred and seventy- 
three despots would surely be as oppressive as 
one ... As little will it avail us, that they are 


Citizen or “Eighteenth Amendment”? 41 i 

chosen by ourselves. An elective despotism was not 
the government we fought for.” {Fed, No. 48.) 

It is clearly the view of Wheeler and all his asso¬ 
ciates that the early Americans did fight their Revolu¬ 
tion so that we might have, in these modern days, an 
elective despotism of four thousand seven hundred and 
forty-two despots. That form of government is prob¬ 
ably relieved from the odium of the Madison and 
Jefferson attack, by the “alleviation” that we ourselves, 
the citizens of America, those to be governed by this 
*^elective despotism ,do not elect or choose even one 
of the despots! 

We cannot linger longer with these amazing briefs 
of the champions of the Eighteenth Amendment. 
From the viewpoint of unconscious humor, we have 
become rather enamored of the Wheeler idea that 
“state governments” and “the people of America” ex¬ 
pressed the same thought to the latter when they made 
the Fifth Article. Since we read Wheeler’s brief, we 
have been trying the same method with some famous 
statements of great Americans. For example, we have 
this new excerpt from Washington’s famous Farewell 
Address: “The basis of our political system is the 
right of the ‘state governments’ to make or alter the 
people’s Constitution of government. And the Con¬ 
stitution which at any time exists, till changed by an 
explicit and authentic act of ‘the legislatures of three 
fourths of the states’ ”—(Washington said ‘the whole 
people’)—“is sacredly obligatory upon all.” 

And we like particularly the improved Wheeler 
concept of the rather crude Gettysburg speech of 
Lincoln. In its new form, altered by the Wheeler 
idea, it is wonderful to hear the appeal of Lincoln that 
we, who were not among the dead at Gettysburg, 


412 


Citizen or Subject? 


should play our part “that government of die people, 
by the state governments, and for those who control 
the state governments, shall not perish from the earth.” 

We wonder if Hughes and Wheeler and Sheppard 
and Webb realize how far they have gone beyond the 
Calhoun idea that was repudiated forever at Gettys¬ 
burg! In the old days, the Calhoun doctrine was that 
a single state, although but a political entity, could do 
as it pleased in its own affairs, even to leaving the 
Union without reference to the wishes of the citizens 
of America. That question was settled forever by 
the result at Gettysburg. The modern claim, the sole 
claim upon which the Eighteenth Amendment depends 
for existence, is that a state government, if it combines 
with enough other state governments, can go outside 
its own jurisdiction, outside the citizenship which chose 
the legislators in it, and issue its omnipotent command 
telling the citizens of America what they may do and 
may not do, “in all matters whatsoever.” 

But we leave the Court of 1920, quite satisfied that 
the modern “constitutional thinkers,” who filed their 
briefs therein, have not exactly the American concept 
of the relation of government to human beings, which 
would have located them at Valley Forge, with Mar¬ 
shall, in the Winter of 1778. 

We leave that Court, however, quite satisfied that 
the Court itself still has the knowledge which Marshall 
had, the knowledge stated in the Tenth Amendment 
and by the decision of that Court in 1907, that all the 
powers not granted by the Constitution to the general 
government at Washington “are reserved to the 
people and can he exercised only hy them or, upon 
further grant from them.” 

We do not forget the question of the Court, the 


Citizen or “Eighteenth Amendment”? 413 

question which none of the lawyers could answer, “In 
what way do counsel believe that the Eighteenth 
Amendment could be made CONSTiTUTiONALLYf” 

We do know the answer to that question. The 
Americans, in the “conventions” we just left, wrote 
the answer in the Fifth Article in the words which are 
the most important words in the Article and one of our 
greatest securities to human liberty, “by conventions in 
three fourths thereof.” 

The “conventions” which mentioned themselves, the 
“conventions,” in the Fifth Article, are the same “con¬ 
ventions” which demanded that the declaration be 
made that every power, not granted in that Constitu¬ 
tion to the government at Washington, remained 
where it had been. As the state governments had been 
incompetent to make the First Article or the Eigh¬ 
teenth Amendment, they remained incompetent to 
make either of them. 

If we needed any assurance that the Supreme Court 
still retains the accurate conceptions of these early 
Americans, we find it in one of the most significant 
facts in the whole remarkable story of the last five 
years. 

We do not need to recall how every lawyer dwells 
continuously upon the fact that the Fifth Article is a 
of power to make new Articles. We do not 
need to refresh our mind with the recollection that the 
Root brief referred to the Fifth Article over fifty 
times as a of such power. We know that every 

argument in every brief was based on the stated as¬ 
sumption that the Fifth Article zvas a ^^granf^ and that 
it made the legislatures of state citizens attorneys in 
fact for the citizens of America, who elect none of the 
members of those legislatures. 


414 


Citizen or Subject? 


Did this monumental error of all the lawyers have 
any effect upon the accurate knowledge of the Supreme 
Court? Did this insistence upon the absurd assump¬ 
tion that the Fifth Article is a **grant/^ in which “con¬ 
ventions” grant something to themselves and to the 
state governments, lead the Court into the error of 
calling it a “grant?” 

Read the conclusions of the Court, as they were 
stated by Judge‘Van Devanter. The opening sentence 
of that statement sweeps aside every assumption that 
the Fifth Article is a ^^grantJ^ Can our knowledge, 
brought right from the old “conventions,” be put more 
completely than in the one statement: “Power to 
amend the Constitution was reserved by Article V.” 

Where is the ^^granf^ all the lawyers have been talk¬ 
ing about? Where is the ^*grant’^ on which the 
Eighteenth Amendment depends for existence? Where 
is the *^granf^ which makes the state legislatures of 
state citizens attorneys in fact, for any purpose, for 
the American citizens? Before the Constitution, in 
which is the Fifth Article, there was no citizen of 
America. And, as the exclusive ability of “conven¬ 
tions” to make national Articles (like the ability of 
state legislatures to make Articles which are not 
national) “was reserved by Article V,” the state gov¬ 
ernments, as imaginary attorneys for ourselves, dis¬ 
appear entirely from the scene. We remain free 
citizens. We have not become “subjects.” 

This comforting knowledge is emphasized when we 
' find that, as the Supreme Court states its Fourth Con¬ 
clusion, again the accurate statement is that the ability 
to make the new Article “is within the power to amend 
RESERVED by Article V of the Constitution.” 

That is our own knowledge. We have brought 


Citizen or “Eighteenth Amendment”? 415 

from the conventions, in which we have sat with the 
early Americans, their knowledge that the ability of 
the “conventions” to make Articles of that kind, their 
exclusive ability to do so, was reserved to those “con¬ 
ventions,” the assembled citizens of America. We 
know that the Tenth Amendment expressly so declares. 
Therefore, when we go to the Supreme Court, with 
owh contention that we still are citizens and that a revo¬ 
lution by government against the people, a revolution 
to make us “subjects,” must «be repudiated by the 
Supreme Court which we have established to protect 
our human liberty against all usurpation by govern¬ 
ments, our challenge will be in the words of Wilson, 
uttered in the Pennsylvania Convention where Ameri¬ 
cans first set their names to the Fifth Article: 

“How comes it, sir, that these state governments 
dictate to their superiors—to the majesty of the 
people?” 


CHAPTER XXVI 


THE AMERICAN CITIZEN WILL REMAIN 

The United States [the great political society of men 
which this book persistently calls America] form, for many, 
and for most important purposes, a single nation. ... In 
war, we are one people. In making peace, we are one 
people. In all commercial regulations, we are one and the 
same people. In many other respects, the American people 
are one; and the government which is alone capable of 
controlling and managing their interests in all these re¬ 
spects, is the government of the Union. It is their govern- 
mentj and in that character they have no other. America 
has chosen to be, in many respects, and to many purposes, 
a nation; and for all these purposes, her government is com¬ 
plete; to all these objects, it is competent. The people have 
declared that, in the exercise of all powers given /or these 
objects, it is supreme. It can, then, in effecting these 
objects, legitimately control all individuals or governments 
within the American territory. (U. S. Supreme Court, 
Cohens v. Virginia, 6 Wheat. 264, at p. 413 et seq.) 

T hese words of Marshall tell every American 
why there is an “America,” a nation of men, in 
addition to a “United States,” a federation or league 
of political entities. The league existed before the 
Constitution created the nation. The league was not 
created by the Constitution. But the league was con¬ 
tinued by the Constitution in which free men created 
the nation. In that Constitution, the league and its 
component members (the states) were made subordi¬ 
nate to the nation and its component members, who are 
the citizens of America. 


416 


The American Citizen Will Remain 417 

How comes it, then, that modern leaders, for five 
years last past, have talked their nonsense about an- 
other government of the one American people? How 
comes it that they have argued and acted as if the 
Fifth Article constituted another government of the 
one American people? 

It certainly would be startling for Marshall and his 
generation to hear the Eighteenth Amendment claim 
that one important purpose for which Americans chose 
to be one people was the purpose of enabling thirty- 
six legislatures of state citizens to interfere, “in all 
matters whatsoever,” with every individual liberty of 
all American citizens. 

In the light of our education with the one American 
people who chose to be, “in many respects, and to many 
purposes, a nation” and to have, IN that character, 
no government other than the government constituted 
by the First Article, how otherwise, than by the one 
word “nonsense,” can we dignify the five-year discus¬ 
sion as to the extent of the powers granted in the Fifth 
Article to other governments, the respective govern¬ 
ments of the members of the league, to interfere with 
the liberties of the members of the nation, the citizens 
of America ? 

Citizens of America, particularly emigrants from 
Europe, must be taught the reason why and the fact 
that the one American people “were bound to have and 
did at last secure” a government free from interfer¬ 
ence by “legislatures, whether representing the states 
or the federal government.” (Judge Parker, supra, in ^ 
Preface.) 

Who is to teach the average citizen the reason or 
the fact? Have our most renowned lawyers shown 
any knowledge of either? Their own briefs have been 


Citizen or Subject? 


418 

permitted to speak for them. Which of those briefs 
has put a finger upon the basic flaw in the Eighteenth 
Amendment challenge to the fact that the American 
citizens “did at last secure a Government” which its 
citizens “could control despite” all legislatures^ 
whether representing state citizens or themselves? 

The men who wrote these briefs are far more than 
lawyers of great renown. They are among the best 
known leaders of public opinion in America. Many 
thousands of average citizens rely upon such men to 
know and state every constitutional protection to in¬ 
dividual liberty. In any generation, reliance upon any 
public leaders for knowledge on that matter is a dis¬ 
tinct menace to individual liberty. The imaginary 
Eighteenth Amendment will have served a useful pur¬ 
pose if it teaches us that we must know of our own 
knowledge, if we want to remain free citizens of 
America. 

“No man, let his ingenuity be what it will, could 
enumerate all the individual rights not relinquished 
by this Constitution.” (Iredell, later a Supreme Court 
Justice, in the North Carolina convention, 4 Ell. Deb. 
I49-) 

These are the rights “retained by the people” of 
America in the Ninth Amendment because not enum¬ 
erated in the First Article. 

“If this Constitution be adopted, it must be pre¬ 
sumed the instrument will be in the hands of every 
man in America, to see whether authority be usurped; 
and any person by inspecting it may see if the power 
claimed be enumerated. If it be not, he will know it 
to be a usurpation.” (Iredell, in North Carolina con¬ 
vention, 4 Ell. Deh. 172.) 

All granted powers to interfere with the individual 


The American Citizen Will Remain 419 

freedom of the American citizen, “in that character,” 
are enumerated In the First Article. 

All powers of that kind not enumerated therein are 
reserved in the Tenth Amendment exclusively to the 
American citizens themselves to be exercised or 
granted by them In the “conventions” of the Fifth 
Article. 

One of these powers Is that which some governments 
of state citizens, in the Eighteenth Amendment, have 
attempted both to exercise and grant. 

The brief of which public leader has known or 
stated these facts to the destruction of the Amend¬ 
ment and to the continued existence of the free Amer¬ 
ican citizen? 

The experience of ages has taught that human lib¬ 
erty, even In a republic. Is never secure unless the 
citizens of the republic themselves understand the basic 
security which protects that liberty. The writer of 
this book wishes to keep his own Individual liberties 
secure against usurpation by any government In Amer¬ 
ica. He wishes to keep his status, as such citizen, to 
all governments in America—the status established by 
the citizens of America through whose experience we 
have been educated. He knows that such status must 
end forever unless American citizens generally have 
the same earnest wish and, of their own knowledge, 
know how the Constitution secures that status and 
their individual liberty. 

Shortly after the American people had chosen to 
be a nation with one government of enumerated pow¬ 
ers, there came to that then land of Individual liberty 
an Irish exile. Quickly he assumed his place with the 
great lawyers of America. And In the year 1824 he 
made clear that he would have been able to teach our 


420 


Citizen or Subject? 


new citizens and oiir public leaders how the one Amer¬ 
ican people ^^did at last secure a government” which 
that one American people “could control despite” the 
state legislatures. In the argument before the Su¬ 
preme Court in the famous case of Gibbons v. Ogden 
(9 Wheat. I, at p. 87), where his opponent was Web¬ 
ster, this is how Emmett stated a fact then known and 
“felt and acknowledged by all”: 

'‘‘‘The Constitution gives nothing to the states or to 
the people. Their rights existed before it was formed. 
. . . The Constitution gives only to the general 

government, and, so far as it operates on the state or 
popular rights, it takes away a portion, which it gives 
to the general government. . . . But the states 

or the people must not be thereby excluded from exer¬ 
cise of any part of the sovereign or popular rights held 
by them before the adoption of the Constitution except 
where that instrument has given it exclusively to the 
general government.” The italics are those of Em¬ 
mett. 

What does this clear statement of fact (known by 
Emmett and his generation to be the exact statement 
of the Tenth Amendment) make out of every argu¬ 
ment, whether for or against the Eighteenth Amend¬ 
ment, based on the assumption that the Fifth Article 
does give something to the states and their govern¬ 
ments? Can any American citizen doubt that it makes 
clear that to describe such arguments by any other 
word save “nonsense” is to lend them a dignity which 
they do not possess? 

Without a single exception, every argument during 
the last five years, whether for or against the Eigh¬ 
teenth Amendment, has deserved the criticism of the 
Supreme Court for the fact that such argument neither 


The American Citizen Will Remain 421 

knew nor considered the meaning of the Tenth Amend¬ 
ment. 

It reads: “The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the states, are 
reserved to the states respectively, or to the people.” The 
argument of counsel ignores the principal factor in this 
Article, to wit, “the people.” Its principal purpose was 
not the distribution of power between the United States 
and the states, but a reservation to the people of all powers 
not granted. The Preamble of the Constitution declares 
who framed it,—“We the people of the United States,” 
not the people of one state, but the people of all the states; 
and Article X reserves to the people of all the states the 
powers not delegated to the United States. The powers 
affecting the internal affairs of the states not granted to the 
United States by the Constitution, nor prohibited by it to 
the states, are reserved to the states respectively, [the power 
of each state for that state to its own people or citizens] 
and all powers of a national character which are not dele¬ 
gated to the national government by the Constitution are 
reserved to the people of the United States [the one people 
or citizens of America, that one American people which 
Marshall so accurately knew]. The people who adopted 
the Constitution, knew that in the nature of things they 
could not forsee all the questions which might arise in the 
future, all the circumstances which might call for the ex¬ 
ercise of further national powers than those granted to the 
United States, and, after making provision for an Amend¬ 
ment to the Constitution by which any needed additional 
powers would be granted, they reserved to themselves all 
powers not so delegated. (Supreme Court, Kansas v. Colo¬ 
rado, 1907, 206 U. S. 46 at p. 90.) 


Why has every argument, for or against the new 
Amendment, ignored the simple and Impressive fact 
that the one word “conventions” was written into the 
Fifth Article and the Seventh Article by the delegates 
at Philadelphia, very shortly after they had reasoned 


422 


Citizen or Subject? 


out and reached their famous legal decision as to the 
difference between the ability of “conventions” and the 
ability of “state legislatures,” also named In the Fifth 
Article? Why completely Ignore the decisive effect of 
this fact when considered with the fact, that Philadel¬ 
phia mentioned “conventions!’ in both Articles and 
only in the Fifth mentioned “state legislatures”? If 
we put ourselves exactly In the position of Philadelphia 
when It was doing this, we see at once why state “leg¬ 
islatures” are pointedly absent from the Seventh 
Article. Philadelphia knew the nature of the First 
Article, that It constituted government ability to Inter¬ 
fere with Individual freedom. Philadelphia knew that 
neither “state legislatures” nor any combination of 
governments can make an Article of that kind In any 
land where men are “citizens” and not “subjects.” 
That is why “legislatures” are not mentioned ip the 
Seventh Article. But Philadelphia did not know the 
nature of any Article which might be proposed at any 
particular time In the future by the body which was 
to perform the duty of proposing, the duty which 
Philadelphia was then performing. And Philadelphia 
knew that any future proposed Article might be of 
the kind which state legislatures could make. It was 
the conviction of Hamilton that all future proposed 
Articles would be of the kind that “legislatures” 
could make because they would be of the kind that did 
not relate to “the mass of powers” to interfere with 
Individual liberty. That Is why Philadelphia, almost 
immediately after It had omitted any mention of “leg¬ 
islatures” In the Seventh Article, did mention “legis¬ 
latures” In the Fifth Article, which related to the mak¬ 
ing of future Articles whose nature Philadelphia could 
not possibly know. 


The American Citizen Will Remain 423 

ly 

Let us not forget what Madison told us about the 
Seventh Article: “This Article speaks for itself. The 
express authority of the people alone could give due 
validity to the Constitution.” {Fed, 43.) This is his 
statement that the Article itself tells us that “the ex¬ 
press authority of the people” will make the Articles 
proposed from Philadelphia. How does the Article 
speak for itself and tell us that? By its one word 
“conventions.” Could Madison tell us more plainly 
that the word “conventions,” which he and his asso¬ 
ciates wrote into the Seventh and which he wrote into 
the Fifth Article, means “the express authority of the 
people” ? 

Can any supporter of the Eighteenth Amendment 
find any statement from Madison in which he tells us 
his word “legislatures” means what he has just told 
us his word “conventions” means? And, when “conven¬ 
tions” meant the “express authority of the people” 
before the Fifth or Seventh Articles were written, how 
could the mention of “conventions” in the Fifth imply 
a ffrant from the “conventions” to the “conventions”? 

Why not admit the simple truth overlooked for the 
past five years? The respective mentions of “Con¬ 
gress,” of “conventions” and of state “legislatures” in 
the Fifth Article speak plainly of each body respec¬ 
tively doing something which it could do if there were 
no Fifth Article. 

If there were no Fifth Article, could not Congress 
draft an Article and propose it and propose a mode 
of ratification? Philadelphia did all these things and 
knew and stated that it exercised no power in doing 
any of them. The mention of Congress implies no 
“grant.” On the contrary, it is a command which pre¬ 
vents the rest of us from making such proposals and 


424 Citizen or Subject? 

prevents “conventions” or state “legislatures” from 
making Articles, within their respective abilities, un¬ 
less proposed to them by “two thirds of both houses 
of Congress.” 

If there were no Fifth Article, could not “conven¬ 
tions” make any kind of an article, as they had made 
the National Articles of 1776 and as they were making 
the Articles of 1787? The mention of “conventions” 
implies no grant. On the contrary, it is a command 
telling the “conventions” that a “Yes” from three 
fourths of the “conventions” shall be necessary and 
sufficient for constitutional” exercise of the power 
they have. It is a great security for human freedom. 
It makes very difficult oppression of the people by 
the people. 

If there were no Fifth Article, could not state “leg¬ 
islatures” make declaratory or federal Articles, which 
neither exercise nor create power to interfere with 
human individual freedom? They had, in 1781, made 
an entire constitution of Articles of that kind. The 
mention of “legislatures” implies no “grant.” On the 
contrary it is a command to these “legislatures,” repre¬ 
senting the members of the union of states. The 
command comes from the superiors of the states, the 
“conventions” of the whole American people. 

It is not the only command which the “conventions” 
of that one people made to the states and their “legis¬ 
latures.” How absurd to imply from that command 
that it is a “grant” of power to those commanded 
governments, giving them omnipotence over every hu¬ 
man freedom of the American people who made the 
command! 

We know what Madison told the Americans in the 
“conventions,” when he asked them to make his Fifth 


The American Citizen Will Remain 425 

Article. He told them that it was a “mode of pro¬ 
cedure” in which either the general government or the 
state governments could originate, by proposal, the 
introduction of changes into the Constitution which is 
both national and federal. He pointedly did not tell 
those Americans that the Fifth Article is a “grant” 
of any ability to the state governments to make no- 
tional Articles and he pointedly did not tell them 
that it is a “grant” of ability to anyone to make any 
Articles. 

Why then was it necessary for the leading brief, in 
support of the Eighteenth Amendment, to add to 
Madison’s explanation of his own Fifth Article (the 
explanation that it was a “mode of procedure”) the 
absurd statement that it was a “grant” from the “con¬ 
ventions” to the “conventions” and the state legisla¬ 
tures of power to make Amendments? Why then was 
it necessary that this brief, speaking of the Fifth 
Article, should say: “The people thus ordained the 
mode of Amendment,” exactly what Madison said, 
“and in their own interest they established this power 
of Amendment”—exactly what Madison pointedly 
omitted to state to the Americans he asked to make the 
Fifth Article ? 

The answer is simple. Without adding to the Mad¬ 
ison statement what he pointedly omitted to state, 
without stating the addition as axiomatic, Hughes 
could not even begin any argument for the Eighteenth 
Amendment. 

The statement which Hughes adds to that of Madi¬ 
son is a statement which flatly contradicts everything 
we have heard in the “conventions.” It flatly contra¬ 
dicts everything the Americans did from 1775 on. It 
flatly contradicts the Tenth Amendment declaration 


426 


Citizen or Subject? 


that the Fifth Article gives no power whatever to the 
states' or their governments. The added statement Is 
sheer “nonsense,” assumed and asserted as axiomatic 
fact. 

And, during the last five years, how has every argu¬ 
ment against the Eighteenth Amendment met the “non¬ 
sense” of the assumption that the Fifth Article is a 
“grant?” In no way at all, except by assuming and 
asserting the same “nonsense,” and by then undertak¬ 
ing to prove another absurdity, namely, that the Fifth 
Article does not relate to the making of fundamental 
changes because the imaginary “grant” is limited in 
extent and does not Include power to take away from 
the Importance of the respective political entities which 
are the states. 

Let no American citizen make any mistake as to this 
one fact. In no argument either for or against the 
Eighteenth Amendment has there been any challenge 
to the sheer assumption that the Fifth Article is a 
“grant” of ability to make changes in the Constitution 
which is both federal and national. On the contrary, 
in every argument, the foundation of everything as¬ 
serted and urged is that very assumption. 

In every argument against the Eighteenth Amend¬ 
ment, possible changes in the Constitution (which is 
both federal and national) have been divided into two 
classes, but not Into the federal class and the national 
class. It has been Invariably contended that the first 
class Include those which can be made under the Imag¬ 
inary “grant” of power in the Fifth Article and in the 
mode of procedure therein prescribed. On the other 
hand, it has been Invariably contended that the other 
class includes those which cannot be made under that 
imaginary “grant” or in any constitutional pro- 


The American Citizen Will Remain 427 

cedure because they take away from the citizens of a 
state their right to govern themselves. 

All arguments alike, whether for or against the 
Eighteenth Amendment, have wholly ignored the fact 
that the citizens of America, for the protection of the 
individual liberty of the one American people, in that 
CHARACTER, established the Constitution and made it 
the supreme law over the citizens of the respective 
states and the states themselves and the state govern¬ 
ments and the league of the states, which the citizens 
of America continued as subordinate to their nation of 
men. 

For this reason probably, no argument, on either 
side, has ever recognized the identity of the “conven¬ 
tions” of the Seventh Article with the “conventions” 
of the Fifth Article. For this reason probably, no 
argument has ever recognized the identity of both 
“conventions” with the most important factor and re- 
servee in the Tenth Amendment, “the people” of 
America, as distinguished from the lesser reservees, 
the peoples or citizens of each state, “the states re¬ 
spectively.” 

It is this very failure to recognize this identity which 
has forced the opponents of the new Amendment into 
the “nonsense” of assuming and asserting, with their 
adversaries, that the Fifth Article is a “grant” to the 
“conventions” and the state “legislatures.” If there 
had not been this failure, everyone would have recog¬ 
nized that the “conventions,” which made the Consti¬ 
tution, neither could nor did “grant” to themselves, 
the “conventions” named in the Fifth Article, any or 
all of the very power which they were then exercising. 
The “nonsense” of the concept of such a “grant” is 
patent once there is recognized the identity between 


Citizen or Subject?. 


428 

the “conventions” with the most Important reservee of 
the Tenth Amendment, the one American people of 
Marshall. 

We all know that, for five years, that identity has 
never been known or mentioned. The failure to know 
or to mention it has been emphasized by the occasional 
references to “conventions” which have been made. 
In one or two arguments, there has been passing at¬ 
tempt to support the “nonsense,” that the Fifth Article 
is a “grant,” but a “grant” limited in extent, by a 
suggestion that the Eighteenth Amendment could be 
“grafted” on the Constitution entirely outside of any 
mode of procedure mentioned In the Constitution. The 
suggestion has been that it could be “grafted” on the 
Constitution by “conventions” of the citizens of each 
state, provided that the citizens of every state gave 
their consent. In these suggestions, we ourselves, the 
citizens of America, the whole American people of 
Marshall, have figured not at all. 

We, who are the citizens of America, must now 
realize the vital importance to our personal liberty of 
our own knowledge that we are citizens of America as 
well as citizens of some particular state. Wilson 
pointed out to the Americans In the Pennsylvania con¬ 
vention the dual capacity of the American, If the new 
Constitution were adopted. We remember his state¬ 
ment that “It was necessary to observe the two-fold 
relation in which the people would stand—first as 
citizens of the general government and, secondly, as 
citizens of their particular state. The general govern¬ 
ment was meant for them in the first capacity; the 
state governments In the second. Both governments 
were derived from the people; both meant for the 
people; both therefore ought to be regulated on the 


The American Citizen Will Remain 429 

same principles.” And we remember the one most 
important American principle, that every government 
in America must get, directly from its own citizens, 
every power to interfere with their individual free¬ 
dom. 

We cannot help contrasting the accurate statement 
of Wilson, “in this Constitution the citizens of Amer¬ 
ica appear dispensing a portion of their power,” with 
what must be the modern statement, if the Eighteenth 
Amendment is in the Constitution, namely, “in this 
Constitution the state governments appear dispensing 
to themselves and to the national government another 
portion of the power of the citizens of America.” 

And, if that modern statement is “nonsense,” what 
else but “nonsense” are the arguments which rely upon 
its truth or which do not point out its absurdity? 

What action of our public leaders, even in this year 
1923, does not disclose that they still have the Tory 
concept that states and their governments, both of 
which are political entities, can exercise or grant power 
which the Tenth Amendment expressly declares that 
the American citizens reserved exclusively to them¬ 
selves, and which the Supreme Court, even as late as 
1907, clearly held “could be exercised only by them or 
upon further grant from them?” No discerning Amer¬ 
ican has failed to note that the Senate still clings to 
the delusion of 1917, that states and their citizens and 
their governments have anything whatever to do with 
the national part of the Constitution of the citizens 
of America. In the newspapers, on January 30, 1923, 
under the heading, “Favor New Defense for Consti¬ 
tution,” appeared a dispatch from Washington. It 
told how the senators on the Judiciary Sub-Committee 
had agreed to report favorably a proposal again to 


430 


Citizen or Subject? 


amend the Constitution by changing the language of 
the Fifth Article. And the main element of the pro¬ 
posed change is to provide that any state may require 
that ratification by its legislature be subject to confirm¬ 
ation by popular vote of the citizens of that state. 

The citizens of each state make their own Constitu¬ 
tion. In it, they give to their own government what 
ability they please to interfere with their own in¬ 
dividual freedom. What have the citizens of any 
State, what have the citizens of every state, in their 
capacity as state citizens, to do with grants of power 
to the American government to interfere with the in¬ 
dividual liberty of the American citizens? Have not 
the American citizens, in every state, protection against 
grants of such power to the one government of the 
American people except by the citizens of America 
themselves, in that character? Is there anything in the 
Fifth Article, as it was written by Madison and made 
by the one American people, which permits any state 
governments—which have no power even over their 
own respective citizens except by grant from them—to 
exercise or create new government power to interfere 
>vith the liberty of the citizens of the distinct and 
supreme nation, America? 

Why persistently and insistently ignore the basic 
American legal principle that every state government 
must get its own power over its own citizens from 
them and that the only government of the American 
citizens must get its every national (as distinguished 
from federal) power directly from the citizens of 
America, assembled in the “conventions” named in the 
Fifth Article ? 

Is there any doubt that Madison, who wrote the 
Fifth Article, knew whom its word “conventions” de- 


The American Citizen Will Remain 431 

scribed? When he asked the one American people to 
make the entire Constitution, this is what he told them 
about the Seventh Article, in which the same word 
“conventions” was used: “This Article speaks for it¬ 
self. The express authority of the people alone could 
give due validity to the Constitution.” If the Seventh 
Article “speaks for itself” and points out that “the 
people alone” are to make the Constitution, with its 
grants of national power in the First Article, what 
word in that Seventh Article identifies the makers of 
the Constitution, which Madison and all Americans 
know was made by the one people of America? Is 
there any word in it except the one word “conventions” 
to describe the people or citizens of America? And 
if that one word “conventions” makes the Article speak 
for itself and tell us that the American citizens them¬ 
selves made the whole Constitution, does not the word 
“conventions” in the Fifth Article speak just as plainly 
for itself and tell us that it also describes and iden¬ 
tifies the one people of America, the citizens of 
America ? 

Why then tinker with the Fifth Article and repeat 
the monumental error on which the existence of the 
Eighteenth Amendment is assumed? Why propose an 
Amendment to the Fifth Article, which Amendment 
will itself assume that the Fifth Article already is a 
“grant” to the state legislatures of ability to give away 
from the citizens of America their exclusive power to 
say to what extent and in what matters their one 
American government may interfere with their indi¬ 
vidual freedom in their character as American citi¬ 
zens ? 

Why not be sane and admit that the Fifth Article 
is not a “grant” to the legislatures of state citizens? 


432 


Citizen or Subject? 


It is settled fact that each such legislature, like every 
legislature in America, must get its every power to 
govern its own citizens from its own citizens. That is 
why the Fourth Article guarantee of “a Republican 
Form of Government” to every state has taught us 
(pp. 250-1) the absurdity of the thought that the Fifth 
Article enables state governments outside Rhode Island 
to give its government power to interfere with the in¬ 
dividual freedom of citizens of Rhode Island. And 
there is a further and more monumental absurdity, in 
this same respect, when we contrast this Fourth Article 
guarantee with the assumption that the Fifth Article 
is a “grant” to the state legislatures. One of the great 
purposes for which the whole American people made 
themselves one nation of men was that the strength of 
such a great nation might be used to secure to the 
Americans in every state the ability to govern them¬ 
selves without any interference from outside the state, 
in all matters except those in which the citizens of 
America took from them the ability to govern them¬ 
selves. That is why the citizens of America wrote 
that guarantee Into the Fourth Article as a command 
to their Inferiors, the states and the state governments. 
Having thus secured “a Republican Form of Govern¬ 
ment” to the Americans In every state by the command 
of the Fourth Article, Is It conceivable that the same 
whole American people, immediately thereafter and 
In the Fifth Article, created for the citizens of America 
a government which has not even the semblence of “a 
Republican Form of Government”? That Is the con¬ 
cept on which the existence of the Eighteenth Amend¬ 
ment depends. It Is not In the Constitution unless. 
Immediately after the guarantee of the Fourth Article 
and in the Fifth Article, the whole people of America 


The American Citizen Will Remain 433 

said: “We have just insisted that the Aiherlcans In 
each state must be governed by a government which 
gets its power directly from them. For ourselves, 
however, as the whole American people, we are con¬ 
tent to let two thirds of Congress and the legislatures 
of three fourths of the states interfere with our In¬ 
dividual freedom, in all matters whatsoever. For 
that reason, we make this grant to those legislatures. 
For ourselves, as one people, we have no desire for 
a Republican Form of Government.’’ 

Does not the claim that the Americans did say this 
In their Fifth Article entitle us more justly than Henry 
to exclaim: “I suppose that I am mad, or that my 
countrymen are so!” (3 Ell. Deb. 446.) 

We know, with certainty, that the Eighteenth 
Amendment is not In our Constitution, and we know 
that the real and Invincible challenge to its existence 
has never been made. What will be the epitaph of 
the audacious attempt of government to dictate to 
Americans as “subjects,” when the challenge Is pre¬ 
sented to the Supreme Court? No patriotic American 
can have the slightest doubt. No man, familiar with 
Its history and traditions, can fail to know the answer 
of that Court to the question, “Citizen or Subject?” 

It Is not unknown that there Is growing up In Amer¬ 
ica, even among many public leaders and lawyers, an 
unfounded concept that the Supreme Court was created 
by the American citizens to make law. Such concept 
is quite In accord with the concept—Indeed It Is part 
of the concept—that government can create and con¬ 
stitute new government of men. But the entire history 
and tradition of the Supreme Court flatly denies the 
existence of any such concept in the mind of the Court 
Itself. Even In the National Prohibition Cases, the 


434 


Citizen or Subject? 


Court quickly displayed the American concept of the 
relation of men to all governments In America. When 
the lawyers had finished their incessant talk about the 
imaginary Fifth Article “grant” which would make all 
American citizens “subjects” of some governments of 
state citizens, had the Tory concept of such a grant 
made the slightest impression upon the mind of the 
Court? We all know that In the decisions, which 
merely negatived four unsound challenges to the 
Amendment, the first statement of the Court was a 
reference to the power “reserved” in the Fifth 
Article. 

And we know how, m the same litigations, the Court 
wholly ignored the absurd claim, even when advanced 
by a former justice of the Court, that, when govern¬ 
ments had attempted to put anything into our Consti¬ 
tution, so long as the attempt did not involve changing 
the number of senators from a state, the Court was 
without power to review the action of governments or 
to protect the American citizen against usurpation by 
government. 

The Constitution is not only the same in words, but the 
same in meaning, and delegates the same powers to the 
government, and reserves and secures the same rights and 
privileges to the citizen, and as long as it continues to 
exist in its present form, it speaks not only in the same 
words, but with the same meaning and intent with which 
it spoke when it came from the hands of its framers and 
was voted on and adopted by the people of the United 
States. Any other rule of construction would abrogate 
the judicial character of the Court, and make it the mere 
reflex of the popular opinion or passion of the day. This 
Court was not created by the Constitution for such pur¬ 
poses. Higher and graver trusts have been confided to it, 
and it must not falter in the path of duty. (Scott v. Sand- 
ford, 19 How. 393, at p. 426.) 


The American Citizen Will Remain 435 


The high power has been conferred upon this Court of 
passing judgment upon the acts of the state sovereignties 
and of the legislative and executive branches of the federal 
government, of determining whether they are beyond the 
limits of power marked out for them respectively by the 
Constitution of the United States. (Luther v. Borden, 
1849, 7 How. 1 at p. 47.) 

The Court will never be called upon to exercise a 
higher or graver trust than to answer the question 
“Citizen or Subject?”, when the real challenge is made 
to the new attempted constitution of government of 
men entirely by government. The Court is not un¬ 
aware that the whole American people established 
their Constitution for the one purpose of protecting 
individual liberty. 

The simple, classical, precise, yet comprehensive language 
in which it is couched, leaves, at most, but very little lati¬ 
tude for construction; and when its intent and meaning is 
discovered, nothing remains but to execute the will of those 
who made it, in the best manner to effect the purposes 
intended. The great and paramount purpose was to unite 
this mass of wealth and power, for the protection of the 
humblest individual; his rights, civil and political, his 
interests and prosperity, are the sole end; the rest are noth¬ 
ing but the means. (Justice Johnson, Gibbons v. Ogden, 

9 Wheat. 1, at p. 223.) 

Nor will anyone familiar with the unbroken tradi¬ 
tion of the Supreme Court listen, with aught but 
mingled incredulity and indignation, to the suggestion 
that the Court itself has not always understood that 
it is itself but a part of the limited government of the 
one American people, created by that people as one 
means to that sole end. 

“It is emphatically the province and duty of the 
Judiciary Department to say what the law is.^* 


436 


Citizen or Subject? 


This is the clear statement of Marshall in Marbury 
V. Madison, i Crunch. 137, declaring unconstitutional 
a section of an act of Congress, which had been passed 
at the first session in 1789. The entire Bench and Bar 
of America, including the Supreme Court, for fourteen 
years, had practiced on the assumption that the section 
was constitutional. Yet in 1803, the Supreme Court 
declared it to be unconstitutional. Nothing could more 
clearly establish the knowledge of the Supreme Court 
that no continued thought (even by the Court itself), 
that any command of legislatures is valid, will ever 
blind the Court to its bounden duty to announce the 
fact that the command was made without authority 
from the people, when that fact is once made clear to 
the Court. 

Exactly the same attitude was taken by the Court 
in relation to an income tax and a federal limitation 
on a national power given to impose direct taxation. 

When that federal limitation was imposed it was 
aimed only at taxation on land and at what were then 
known as “poll” or “capitation” taxes. In the days 
of the “conventions” where we have sat, all other 
kinds of taxation were deemed to be indirect tax¬ 
ation. 

In the very early days of the Supreme Court, this 
knowledge of the “convention” days was echoed in 
decisions which, on that ground, held that certain 
taxes, which today might be regarded as direct taxa¬ 
tion, were not within the federal limitation as to ap¬ 
portionment of direct taxes among the states. Among 
those taxes, those imposed without apportionment, 
were a tax on carriages and receipts of insurance com¬ 
panies and on the inheritance of real estate. Even as 
late as the days of the Civil War, when a tax was im- 


The American Citizen Will Remain 437 

f ' 

posed upon incomes and without apportionment among 
states, the Supreme Court held that such tax was not 
a direct tax within the meaning of “direct tax” to 
those who imposed the federal limitation. 

Nevertheless, when the income tax law of 1894 had 
been enacted, its opponents again carried to the Su¬ 
preme Court the claim that it violated the federal limi¬ 
tation on the power of direct taxation, because it did 
not apportion the tax among the states. And the Su¬ 
preme Court, by a divided vote and on the ground that 
a tax on the income from land was a tax on the land 
itself and consequently a direct tax, held the Income 
Tax Law of 1894 to be void. It was by reason of 
this decision that the Sixteenth Amendment was pro¬ 
posed and adopted, making the federal change in the 
Constitution that lifted the federal limitation from the 
national power of direct taxation insofar as a tax on 
incomes was concerned. 

In these decisions, as in the many others which have 
followed the same clear American concept of duty and 
power, the Supreme Court has always known and fol¬ 
lowed the reason stated by Hamilton for its existence 
as part of the limited government of the one American 
people. 

In Federalist, Nos. 78 and 81, appealing to the 
Americans to make the Constitution, Hamilton points 
out that the Constitution does not authorize the Su¬ 
preme Court to exercise its will to make the law what 
the Court thinks it ought to be, but does impose upon 
the Court the duty of exercising its judgment to ascer¬ 
tain what the law has been made by those competent to 
make it. And then he points out that the Supreme 
Court, in this Constitution of a self-governing people, 
is made the great bulwark of the people against legis- 


438 


Citizen or Subject? 


lative encroachment upon the rights or powers of the 
people reserved to themselves. 

This knowledge of Hamilton has been the knowl¬ 
edge of the Supreme Court from its institution. It has 
been reiterated and explained and expounded in that 
Court from the days of Marshall to our own day. It 
has become part and parcel of the great traditions of 
that Court, which are the foundation of the great re¬ 
spect which the average American citizen pays to its 
decisions and its authority as his own great protection 
against usurpation of power by other departments of 
his various governments. 

. And so the average American citizen will look for¬ 
ward with certainty to the decision of that Court when 
the real challenge is made to the existence of the Eigh¬ 
teenth Amendment by an American who does know 
and assert the plain facts which mean that either there 
is no Eighteenth Amendment or there never has been 
an American citizen. It is simple fact that the exist¬ 
ence of the Eighteenth Amendment, that government- 
made constitution of government of men, is absolutely 
incompatible with the existence of a citizen of America. 
It is simple fact that the Fifth Article did not grant 
to state governments or to any governments the ability 
to make Articles like the First Article or the Eigh¬ 
teenth Amendment, or else the Fifth Article made all 
Americans “subjects” of a part of the state govern¬ 
ments, with omnipotent ability in those governments 
to legislate for Americans “in all matters whatsoever.” 

And it is simple fact that the Supreme Court must 
and will—when the real challenge is at last made— 
decide that the Eighteenth Amendment is not in the 
national part of the American Constitution because it 
was made by governments and not by the “conven- 


The American Citizen Will Remain 439 

tlons” of the Fifth Article. Otherwise, in the face of 
history, in the face of the record of the “conventions” 
of the American citizens, and in the face of all that 
the Supreme Court has hitherto decided, the Court 
must decide that the American citizen has never ex¬ 
isted. The possibility that there should be such a de¬ 
cision is absolutely beyond conception. 

What the decision will be was long ago foreshad¬ 
owed and forecast by Daniel Webster. It would al¬ 
most seem as if Webster had heard the Sheppard claim 
that the states made the Constitution and that the 
states had then agreed between themselves that the 
governments of thirty-six of the states, in combination, 
could command the American citizen in any matter of 
his individual freedom. It would almost seem as if 
Webster had heard Hughes deny, while his associate 
lawyers for the Eighteenth Amendment still asserted 
with Sheppard, that the Constitution was a compact 
between states and then had heard them all insist that 
the Fifth Article was a “grant” which made thirty-six 
governments of state citizens an omnipotent Parlia¬ 
ment over all citizens of America. 

“When the gentleman says, the Constitution is a 
compact between the states, he uses language exactly 
applicable to the old Confederation. He speaks as 
if he were in Congress before 1789. He describes 
fully that old state of things then existing. The Con¬ 
federation was. In strictness, a compact; the states, as 
states, were parties to it. We had no other general 
government. But that was found insufficient, and in¬ 
adequate to the public exigencies. The people were 
not satisfied with it, and undertook to establish a bet¬ 
ter. They undertook to form a general government 
which would stand on a new basis—not a confederacy, 


440 


Citizen or Subject? 


not a league, not a compact between states, but a con¬ 
stitution; a popular government, founded in popular 
election, directly responsible to the people themselves, 
and divided into branches, with prescribed limits of 
powerf and prescribed duties. They ordained such a 
government; they gave it the name of a constitution; 
and therein they established a distribution of powers 
between this, their general government, and their sev¬ 
eral state governments. When they shall have become 
dissatisfied with this distribution, they can alter it. 
Their own power over their own instrument remains. 
But until they shall alter it, it must stand as their will, 
and is equally binding on the general government and 
on the states.” (Webster’s concluding remarks in the 
reply to Hayne, 4 Ell. Deb. 518.) 

Is not the same doctrine certain from the Court 
which knew the whole Constitution so well that it 
decided, in the important case of Barron v. Mayor of 
Baltimore, supra, p. 376, that the entire Constitution 
gave no power of any kind to the state governments? 
Is not the same doctrine certain from the Court which 
held: 

The powers the people have given to the General Gov¬ 
ernment are named in the Constitution, and all not there 
named, either expressly or by implication, are reserved to 
the people, and can be exercised only by them, or upon fur¬ 
ther grant from them. (Turner v. Williams, 194 U. S. 
279 at 296.) 

When the real challenge to the Eighteenth Amend¬ 
ment is presented before that Court, it will be neces¬ 
sary for the defenders of the Amendment to abandon 
the disguise in which they attempt to conceal the real 
nature of their Tory concept. No one of them has 


The American Citizen Will Remain 441 

been bold enough to state In’words the real claim about 
the Fifth Article. That real claim is that the Article 
is a “grant” and that the “grant” gives to thirty-six 
governments of state citizens unrestricted ability to 
interfere with the freedom of the American citizen on 
every subject enumerated in the First Article and on 
every subject not enumerated in the First Article. 
That is not the way any defender of the Amendment 
states his claim. It is always stated that those thirty- 
six governments can change the Constitution by putting 
into it anything which the American citizens, assembled 
in their “conventions,” can put into it. Our education 
with the Americans in the “conventions” has taught 
us that both statements are exactly the same state¬ 
ment. If the thirty-six state governments can make 
the command to the American citizens which is em¬ 
bodied in the First Section of the Eighteenth Amend¬ 
ment, by putting that command into the national part 
of our Constitution, any thirty-six state legislatures can 
make any command to the American citizens 'on any 
subject enumerated or not enumerated in the First 
Article. The claim, that the Fifth Article “grants” to 
the thirty-six state governments the right to put the 
command in the Constitution, is identical with the 
claim that the Fifth Article “grants” to the state gov¬ 
ernments the right to make the command to the citi¬ 
zens of America. A legislative command to human 
beings, interfering with their individual freedom, is a 
legislative command by whatever name it may be 
called. Mere omission to call a legislative command 
by the usual names, an “Act” or “Statute,” cannot 
alter its essential nature. 

From June 21st, 1788, the birthday of the American 
nation of men, there has been but one possible answer 


442 


Citizen or Subject? 


to the question which is the title of this book. That 
one answer was known to everyone in the “conven¬ 
tions” which made the Fifth Article. The Americans 
in those conventions all knew that they were becoming 
“citizens” of America, not “subjects” of any govern¬ 
ments. They knew that they were dispensing part of 
the power of the American citizens to Congress in the 
First Article; and that the rest of that power they 
were reserving to themselves. They knew that they 
were giving no power whatever to the state govern¬ 
ments with whom they never deal except to command 
those governments. 

That is why Pendleton, in the Virginia convention, 
made his statement of fact in the oratorical form of a 
question, because the one answer to the question was 
known and “felt and acknowledged by all.” His state¬ 
ment of fact, made in the oratorical form of a ques¬ 
tion, Is, In substance, exactly the title of this book: 

“Who but the people can delegate powers? . 

What have the state governments to do with it?” (3 
Ell. Deh. 37.) 


1 


APPENDICES 


1 


i 

I 

i 


i 

», 

i 

1 











APPENDIX I 


THE ORIGINAL CONSTITUTION OF ^THE UNITED 

STATES 

We the People of the United States, in Order to form a more 
perfect Union, establish Justice, insure domestic Tranquility, 
provide for the common defence, promote the general Welfare, 
and secure the Blessings of Liberty to ourselves and our Pos¬ 
terity, do ordain and establish this Constitution for the United 
States of America.' 

Article. I. 

Section, i. All legislative Powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a 
Senate and House of Representatives. 

Section. 2. The House of Representatives shall be composed 
of Members chosen every second Year by the People of the 

the 

several States, and the Electors in each State shall have A 
Qualifications requisite for Electors of the most numerous 
Branch of the* State Legislature. 

No Person shall be a Representative who shall not have at¬ 
tained to the Age of twenty five Years, and been seven Years 
a Citizen of the United ‘States, and who shall not, when elected, 
be an Inhabitant of that State in which he shall be chosen. 

Representatives and direct Taxes shall be apportioned among 
the several States which may be included within this Union, 
according to their respective Numbers, which shall be deter¬ 
mined by adding to the whole Number of free Persons, including 
those bound to Service for a Term of Years, and excluding In¬ 
dians not taxed, three fifths of all other Persons. The actual 
Enumeration shall be made within three Years after the first 
Meeting of the Congress of the United States, and within every 
subsequent Term of ten Years, in such Manner as they shall 
by Law direct. The Number of Representatives shall not exceed 
one for every thirty Thousand, but each State shall have at 

445 


446 


Appendix I 


Least one Representative; and until such enumeration shall be 
made, the State of New Hampshire shall be entitled to chuse 
three, Massachusetts eight, Rhode-Island and Providence Plan¬ 
tations one, Connecticut five. New-York six. New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten. 
North Carolina five. South Carolina five, and Georgia three. 

When vacancies happen in the Representation from any State, 
the Executive Authority thereof shall issue Writs of Election 
to fill such Vacancies. 

The House of Representatives shall chuse their Speaker and 
other Officers; and shall have the sole Power of Impeachment. 
Section. 3. The Senate of the United States shall be composed 
of two Senators from each State, chosen by the Legislature 
thereof, for six Years; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of 
the first Election, they shall be divided as equally as may be 
into three Classes. The Seats of the Senators of the first Class 
shall be vacated at the Expiration of the second Year, of the 
second Class at the Expiration of the fourth Year, and of the 
third Class at the Expiration of the sixth Year, so that one 
third may be chosen every second Year; and if Vacancies 
happen by Resignation, or otherwise, during the Recess of the 
Legislature of any State, the Executive thereof may make tem¬ 
porary Appointments until the next Meeting of the Legislature, 
which shall then fill such Vacancies. 

No Person shall be a Senator who shall not have attained to 
the Age of thirty Years, and been nine Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant 
of that State for which he shall be chosen. 

The Vice President of the United States shall be President 
of the Senate, but shall have no Vote, unless they be equally 
divided. 

The Senate shall chuse their other Officers, and also a Presi¬ 
dent pro tempore, in the Absence of the Vice President, or 
when he shall exercise the Office of President of the United 
States. 

The Senate shall have the sole Power to try all Impeach¬ 
ments. When sitting for that Purpose, they shall be on Oath or 

is tried 

Affirmation. When the President of the United States A 
the Chief Justice shall preside: And no Person shall be con- 


Appendix I 


447 

victed without the Concurrence of two thirds of the Members 
present. 

Judgment in Cases of Impeachment shall not extend further 
than to removal from Office, and disqualification to hold and 
enjoy any Office of honor, Trust or Profit under the United 
States: but the Party convicted shall nevertheless be liable and 
subject to Indictment, Trial, Judgment and Punishment, ac¬ 
cording to Law. 

Section. 4. The Times, Places and Manner of holding Elec¬ 
tions for Senators and Representatives, shall be prescribed in 
each State by the Legislature thereof; but the Congress may 
at any time by Law make or alter such Regulations, except as 
to the Places of chusing Senators. 

The Congress shall assemble at least once in every Year, 
and such Meeting shall be on the first Monday in December, 
unless they shall by Law appoint a different Day. 

Section. 5. Each House shall be the Judge of the Elections, 
Returns and Qualifications of its own Members, and a Majority 
of each shall constitute a Quorum to do Business; but a smaller 
Number may adjourn from day to day, and may be authorized 
to compel the Attendance of absent Members, in such Manner, 
and under such Penalties as each House may provide. 

Each House may determine the Rules of its Proceedings, 
punish its Members for disorderly Behaviour, and, with the 
Concurrence of two thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and 
from time to time publish the same, excepting such Parts as 
may in their Judgment require Secrecy; and the Yeas and 
Nays of the Members of either House on any question shall, 
at the Desire of one fifth of those Present, be entered on the 
Journal. 

Neither House, during the Session of Congress, shall, with¬ 
out the Consent of the other, adjourn for more than three days, 
nor to any other Place than that in which the two Houses 
shall be sitting. 

Section. 6. The Senators and Representatives shall receive a 
Compensation for their Services, to be ascertained by Law, 
and paid out of the Treasury of the United States. They 
shall in all Cases, except Treason, Felony and Breach of the 
Peace, be privileged from Arrest during their Attendance at 
the Session of their respective Houses, and in going to and 


448 


Appendix I 


returning from the same; and for any Speech or Debate in 
either House, they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for 
which he was elected, he appointed to any civil Office under 
the Authority of the United States, which shall have been 
created, or the Emoluments whereof shall have been encreased 
during such time; and no Person holding any Office under the 
United States, shall be a Member of either House during his 
Continuance in Office. 

Section. 7. All Bills for raising Revenue shall originate in the 
House of Representatives; but the Senate may propose or con¬ 
cur with Amendments as on other Bills. 

Every Bill which shall have passed the House of Repre¬ 
sentatives and the Senate, shall, before it become a Law, be 
presented to the President of the United States; If he ap¬ 
prove he shall sign it, but if not he shall return it, with his 
Objections to that House in which it shall have originated, who 
shall enter the Objections at large on their Journal, and proceed 
to reconsider it. If after such Reconsideration two thirds of 
that House shall agree to pass the Bill, it shall be sent, together 
with the Objections, to the other House, by which it shall 
likewise be reconsidered, and if approved by two thirds of that 
House, it shall become a Law. But in all such Cases the 
Votes of both Houses shall be determined by yeas and Nays, 
and the Names of the Persons voting for and against the Bill 
shall be entered on the Journal of each House respectively. If 
any Bill shall not be returned by the President within ten 
Days (Sundays excepted) after it shall have been presented 
to him, the Same shall be a Law, in like Manner as if he had 
signed it, unless the Congress by their Adjournment prevent its 
Return, in which Case it shall not be a Law. 

Every Order, Resolution, or Vote to which the Concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of Adjournment) shall be presented to 
the President of the United States; and before the Same shall 
take Effect, shall be approved by him, or being disapproved by 
him, shall be repassed by two thirds of the Senate and House 
of Representatives, according to the Rules and Limitations pre¬ 
scribed in the Case of a Bill. 

Section. 8. The Congress shall have Power To lay and collect 
Taxe^ Duties, Imposts and Excises, to pay the Debts and 


Appendix I 


449 

provide for the common Defence and general Welfare of the 
United States; but all Duties, Imposts and Excises shall be 
uniform throughout the United States; 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among the 
several States, and with the Indian Tribes; 

To establish an uniform Rule of Naturalization, and uni¬ 
form Laws on the subject of Bankruptcies throughout the 
United States; 

To coin Money, regulate the Value thereof, and of foreign 
Coin, and fix the Standard of Weights and Measures; 

To provide for the Punishment of counterfeiting the Se¬ 
curities and current Coin of the United States; 

To establish Post Offices and post Roads; 

To promote the Progress of Science and useful Arts, by 
securing for limited Times to Authors and Inventors the ex¬ 
clusive Right to their respective Writings and Discoveries; 

To constitute Tribunals inferior to the supreme Court; 

To define and punish Piracies and Felonies committed on the 
high Seas, and Offences against the Law of Nations; 

To declare War, grant Letters of Marque and Reprisal, and 
make Rules concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money 
to that Use shall be for a longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the 
land and naval Forces; 

To provide for calling forth the Militia to execute the Laws 
of the Union, suppress Insurrections and repel Invasions; 

To provide for organizing, arming,, and disciplining, the 
Militia, and for governing such Part of them as may be em¬ 
ployed in the Service of the United States, reserving to the 
States respectively, the Appointment of the Officers, and the 
Authority of training the Militia according to the discipline 
prescribed by Congress; 

To exercise exclusive Legislation in all Cases whatsoever, 
over such District (not exceeding ten Miles square) as may, 
by Cession of particular States, and the Acceptance of Congress, 
become the Seat of the Government of the United States, and to 
exercise like Authority over all Places purchased by the Consent 
of the Legislature of the State in which the Same shall be, 


450 


Appendix I 


for the Erection of Forts, Magazines, Arsenals, dock-Yards, 
and other needful Buildings;—And 

To make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other 
Powers vested by this Constitution in the Government of the 
United States, or in any Department or Officer thereof. 

Section. 9. The Migration lor Importation of such Persons as 
any of the States now existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the Year one thousand 
eight hundred and eight, but a Tax or duty may be imposed 
on such Importation, not exceeding ten dollars for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when in Cases of Rebellion or Invasion the 
public Safety may require it. 

No Bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct, Tax shall be laid, unless in 
Proportion to the Census or Enumeration herein before di¬ 
rected to be taken. 

No Tax or Duty shall be laid on Articles exported from any 
State. 

No Preference shall be given by any Regulation of Com¬ 
merce or Revenue to the Ports of one State over those of an¬ 
other: nor shall Vessels bound to, or from, one State, be obliged 
to enter, clear, or pay Duties in another. 

No Money shall be drawn from the Treasury, but in Con¬ 
sequence of Appropriations made by Law; and a regular State¬ 
ment and Account of the Receipts and Expenditures of all public 
Money shall be published from time to time. 

No Title of Nobility shall be granted by the United States: 
And no Person holding any Office of Profit or Trust under 
them, shall, without the Consent of the Congress, accept of any 
present, Emolument, Office, or Title, of any kind whatever, from 
any King, Prince, or foreign State. 

Section. 10. No State shall enter into any Treaty, Alliance, or 
Confederation; grant Letters of Marque and Reprisal; coin 
Money; emit Bills of Credit; make any Thing but gold and 
silver Coin a Tender in Payment of Debts; pass any Bill of 
Attainder, ex post facto Law, or Law impairing the Obligation 
of Contracts, or grant any Title of Nobility. 

the 

No State shall, without the Consent of A Congress, lay any 


Appendix I 


451 

Imposts or Duties on Imports or Exports, except what may be 
absolutely necessary for executing it’s inspection Laws: and 
the net Produce of all Duties and Imposts, laid by any State 
on Imports or Exports, shall be for the Use of the Treasury 
of the United States; and all such Laws shall be subject to the 

the 

Revision and Controul of A Congress. 

No State shall, without the Consent of Congress, lay any 
Duty of Tonnage, keep Troops, or Ships of War in time of 
Peace, enter into any Agreement or Compact with another 
State, or with a foreign Power, or engage in War, unless 
actually invaded, or in such imminent Danger as will not 
admit of delay. 

Article. 11 . 

Section, i. The executive Power shall be vested in a Presi¬ 
dent of the United States of America. He shall hold his 
Office during the Term of four Years, and, together with the 
Vice President, chosen for the same Term, be elected, as follows 

Each State shall appoint, in such Manner as the Legislature 
thereof may direct, a Number of Electors, equal to the whole 
Number of Senators and Representatives to which the State 
may be entitled in the Congress: but no Senator or Repre¬ 
sentative, or Person holding an Office of Trust or Profit under 
the United States, shall be appointed an Elector. 

The Electors shall meet in their respective vStates, and vote 
by Ballot for two Persons, of whom one at least shall not be 
an Inhabitant of the same State with themselves. And they 
shall make a List of all the Persons voted for, and of the 
Number of Votes for each; which List they shall sign and 
certify, and transmit sealed to the Seat of the Government of 
the United States, directed to the President of the Senate. 
The President of the Senate shall, in the Presence of the Senate 
and House of Representatives, open all the Certificates, and 
the Votes shall then be counted. The Person having the great¬ 
est Number of Votes shall be the President, if such Number be 
a Majority of the whole Number of Electors appointed; and if 
there be more than one who have such Majority, and have an 
equal Number of Votes, then the House of Representatives shall 
immediately chuse by Ballot one of them for President; and if 
no Person have a Majority, then from the five highest on the 


452 


Appendix I 


List the said House shall in like Manner chuse the President. 
But in chusing the President, the Votes shall be taken by 
States, the Representation from each State having one Vote; 
A quorum for this Purpose shall consist of a Member or 
Members from two thirds of the States, and a Majority of all 
the States shall be necessary to a Choice. In every -Case, after 
the Choice of the President, the Person having the greatest 
Number of Votes of the Electors shall be the Vice President, 
But if there should remain two or more who have equal Votes, 
the Senate shall chuse from them by Ballot the Vice President. 

The Congress may determine the Time of chusing the Elec¬ 
tors, and the Day on which they shall give their Votes; which 
Day shall be the same throughout the United States. 

No Person except a natural born Citizen, or a Citizen of the 
United States, at the time of the Adoption of this Constitution, 
shall be eligible to the Office of President; neither shall any 
Person be eligible to that Office who shall not have attained to 
the Age, of thirty-five Years, and been fourteen Years a Resi¬ 
dent within the United States. 

In Case of the Removal of the President from Office, or 
of his Death, Resignation, or Inability to discharge the Powers 
and Duties of the said Office, the Same shall devolve on the 
Vice President, and the Congress may by Law provide for the 
Case of Removal, Death, Resignation or Inability, both of the 
President and Vice President, declaring what Officer shall then 
act as President, and such Officer shall act accordingly, until 
the Disability be removed, or a President shall be elected. 

The President shall, at stated Times, receive for his Services, 
a Compensation, which shall neither be encreased nor dimin¬ 
ished during the Period for which he shall have been elected, 
and he shall not receive within that Period any other Emolument 
from the United States, or any of them. 

Before he enter on the Execution of his Office, he shall take 
the following Oath or Affirmation:—“I do solemnly swear (or 
affirm) that I will faithfully execute the Office of President of 
the United States, and will to the best of my Ability, preserve, 
protect and defend the Constitution of the United States.’" 
Section. 2. The President shall be Commander in Chief of the 
Army and Navy of the United States, and of the Militia of the 
several States, when called into the actual Service of the 
United States; he may require the Opinion, in writing, of the 


Appendix I 


453 


principal Officer in each of the executive Departments, upon any 
Subject relating to the Duties of their respective Offices, and he 
shall have Power to grant Reprieves and Pardons for Offences 
against the United States, except in Cases of Impeachment. 

He shall have Power, by and with the Advice and Consent 
of the Senate, to make Treaties, provided two thirds of the 
Senators present concur; and he shall nominate, and by and with 
the Advice and Consent of the Senate, shall appoint Ambassa¬ 
dors, other public Ministers and Consuls, Judges of the supreme 
Court, and all other Officers of the United States, whose Ap¬ 
pointments are not herein otherwise provided for, and which 
shall be established by Law: but the Congress may by Law vest 
the Appointment of such inferior Officers, as they think proper, 
in the President alone, in the Courts of Law, or in the Heads 
of Departments. 

* The President shall have Power to fill up all Vacancies that 
may happen during the Recess of the Senate, by granting Com¬ 
missions which shall expire at the End of their next Session. 
Section. 3. He shall from time to time give to the Congress 
Information of the State of the Union, and recommend to their 
Consideration such Measures as he shall judge necessary and 
expedient; he may, on extraordinary Occasions, convene both 
Houses, or either of them, and in Case of Disagreement be¬ 
tween them, with Respect to the Time of Adjournment, he may 
adjourn them to such Time as he shall think proper; he shall 
receive Ambassadors and other public Ministers; he shall take 
Care that the Laws be faithfully executed, and shall Commission 
all the Officers of the United States. 

Section. 4. The President, Vice President and all civil Officers 
of the United States, shall be removed from Office on Impeach¬ 
ment for, and Conviction of. Treason, Bribery, or other high 
Crimes and Misdemeanors. 

Article III. 

Section, i. The judicial Power of the United States, shall be 
vested in one supreme Court, and in such inferior Courts as 
the Congress may from time to time ordain and establish. 
The Judges, both of the supreme and inferior Courts, shall hold 
their Offices during good Behaviour, and shall, at stated Times, 
receive for their Services, a Compensation, which shall not be 
diminished during their Continuance in Office. 


454 


Appendix I 


■Section. 2. The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the Laws of 
the United States, and Treaties made, or which shall be made, 
under their Authority;—to all Cases affecting Ambassadors, 
other public Ministers and Consuls;—to all Cases of admiralty 
and maritime Jurisdiction;—to Controversies to which the United 
States shall be a Party;—to Controversies between two or more 
States;—^between a State and Citizens of another State;—be¬ 
tween Citizens of different States,—between Citizens of the same 
State claiming Lands under Grants of different States, and be¬ 
tween a State, or the Citizens thereof, and foreign States, 
Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers 
and Consuls, and those in which a State shall be Party, the 
supreme Court shall have original Jurisdiction. In all the other 
Cases before mentioned, the supreme Court shall have appellate 
Jurisdiction, both as to Law and Fact, with such Exceptions, 
and^under such Regulations as the Congress shall make. 

The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury; and such Trial shall be held in the State where 
the said Crimes shall have been committed; but when not com¬ 
mitted within any State, the Trial shall be at such Place or 
Places as the Congress may by Law have directed. 

Section. 3. Treason against the United States, shall consist only 
in levying War against them, or in adhering to their Enemies, 
giving them Aid and Comfort. No Person shall be convicted 
of Treason unless on the Testimony of two Witnesses to the 
same overt Act, or on Confession in open Court. 

The Congress shall have Power to declare the Punishment 
of Treason, but no Attainder of Treason shall work Corruption 
of Blood, or Forfeiture except during the Life of the Person 
attainted. 

Article. IV. 

Section, i. Full Faith and Credit shall be given in each State 
to the public Acts, Records, and judicial Proceedings of every 
other State. And the Congress may by general Laws prescribe 
the Manner in which such Acts, Records and Proceedings shall 
be proved, and the Effect thereof. 

Section. 2. The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States. 


Appendix I 


455 


A Person charged in any State with Treason, Felony, or 
other Crime, who shall flee from Justice, and be found in an¬ 
other State, shall on Demand of the executive Authority of the 
State from which he fled, be delivered up, to be removed to 
the State having Jurisdiction of the Crime. 

No Person held to Service or Labour in one State, under 
the Laws thereof, escaping into another, shall, in Consequence 
of any Law or Regulation therein, be discharged from such 
Service or Labour, but shall be delivered up on Claim of the 
Party to whom such Service or Labour may be due. 

Section. 3. New States may be admitted by the Congress into 
this Union; but no new State shall be formed or erected within 
the Jurisdiction of any other State; nor any State be formed 
by the Junction of two or more States, or Parts of States, with¬ 
out the Consent of the Legislatures of the States concerned as 
well as of the Congress. 

The Congress shall have Power to dispose of and make all 
needful Rules and Regulations respecting the Territory or other 
Property belonging to the United States; and nothing in this 
Constitution shall be so construed as to Prejudice any Claims of 
the United States, or of any particular State. 

Section. 4. The United States shall guarantee to every State 
in this Union a Republican Form of Government, and shall 
protect each of them against Invasion; and on Application of 
the Legislature, or of the Executive (when the Legislature can¬ 
not be convened) against domestic Violence. 

Article. V. 

The Congress, whenever two thirds of both Houses shall deem 
it necessary, shall propose Amendments to this Constitution, or, 
on the Application of the Legislatures of two thirds of the 
several States, shall call a Convention for proposing Amend¬ 
ments, which, in either Case, shall be valid to all Intents and 
Purposes, as Part of this Constitution, when ratified by the 
Legislatures of three fourths of the several States, or by Con¬ 
ventions in three fourths thereof, as the one or the other Mode 
of Ratification may be proposed by the Congress; Provided that 
no Amendment which may be made prior to the Year One 
thousand eight hundred and eight shall in any Manner affect 
the first and fourth Clauses in the Ninth Section of the first 


Appendix I 


456 

Article; and that no State, without its Consent, shall be de¬ 
prived of iPs equal Suffrage in the Senate. 


Article. VI. 

All Debts contracted and Engagements entered into, before 
the Adoption of this Constitution, shall be as valid against the 
United States under this Constitution, as under the Confedera¬ 
tion. 

This Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or 
which shall be made, under the Authority of the United States, 
shall be the supreme Law of the Land; and the Judges in every 
State shall be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and the 
Members of the several State Legislatures, and all executive 
and judicial Officers, both of the United States and of the several 
States, shall be bound by Oath or Affirmation, to support this 
Constitution; but no religious Test shall ever be required as a 
Qualification to any Office or public Trust under the United 
States. 

Article. VII. 


The Ratification of the Conventions of nine States, shall be 
sufficient for the Establishment of this Constitution between the 


States so ratifying the Same. 


The Word, “the,” being inter¬ 
lined between the seventh and 
eighth Lines of the first Page, 
The Word “Thirty” being partly 
written on an Erazure in the 
fiUeenth Line of the first Page, 
The Words “is tried” being in¬ 
terlined between the thirty sec¬ 
ond and thirty third Lines of 
the first _ Page and the Word 
“the” being interlined between 
the forty third and forty fourth 
Lines of the second Page. 


done in Convention by the Unani¬ 
mous Consent of the States present 
the Seventeenth Day of September 
in the Year of our Lord one thou¬ 
sand seven hundred and Eighty 
seven and of the Independance of 
the United States of America the 
Twelfth In witness whereof We 
have hereunto subscribed our 
Names, 


Attest William Jackson Secretary 


'Go Washington —Presidt 
and deputy from Virginia 


Appendix I 


457 


New Hampshire 

Massachusetts 

Connecticut 
New York 

New Jersey 


Pensylvania 


Delaware 

Maryland 
Virginia 
North Carolina 

South Carolina 

Georgia 


(John Langdon 1 
(N1CH01.AS Gilman) 

(Nathaniel Gorham 
(Rufus King 

JWm. Saml. Johnson 
(Roger Sherman 

. Alexander Hamilton 

'Wil: Livingston 
David Brearley. 

Wm Paterson. 

JoNA: Dayton 

'B Franklin 
Thomas Mifflin 
Robt Morris 
^ Geo. Clymer 
Thos FitzSimons 
Jared Ingersoll 
James Wilson 
Gouv Morris 

V 

Geo: Read 

Gunning Bedford jun 
- John Dickinson 
Richard Bassett 
Jaco: Broom 

7 ames McHenry 
' Dan of St Thos Jenifer 
Dan. Carroll 

V 


(John Blair 
(James Madison Jr. 

{ Wm Blount 
Richd Dobbs Spaight. 

Hu Williamson 

7. Rutledge 

Charles Cotesworth Pinckney 
Charles Pinckney 
Pierce Butler. 

(William Few 
/Abr Baldwin 







APPENDIX II 


THE RESOLUTION WHICH PROPOSED THE 
CONSTITUTION TO THE CONVENTIONS 
OF THE PEOPLE OF AMERICA 

In Convention Monday September 17th 1787. 

Present 
The States of 

New Hampshire, Massachusetts, Connecticut, Mr. Hamilton 
from New York, New Jersey, Pennsylvania, Delaware, Mary¬ 
land, Virginia, North Carolina, South Carolina and Georgia. 
Resolved, 

That the preceeding Constitution be laid before the United 
States in Congress assembled, and that it is the Opinion of this 
Convention, that it should afterwards be submitted to a Con¬ 
vention of Delegates, chosen in each State by the People thereof, 
under the Recommendation of its Legislature, for their Assent 
and Ratification; and that each Convention assenting to, and 
ratifying the Same, should give Notice thereof to the United 
States in Congress assembled. 

Resolved, That it is the Opinion of this Convention, that as 
soon as the Conventions of nine States shall have ratified this 
Constitution, the United States in Congress assembled should 
fix a Day on which Electors should be appointed by the States 
which shall have ratified the same, and a Day on which the 
Electors should assemble to vote for the President, and the Time 
and Place for commencing Proceedings under this Constitution. 
That after such Publication the Electors should be appointed, and 
the Senators and Representatives elected: That the Electors 
should meet on the Day fixed for the Election of the President, 
and should transmit their Votes certified, signed, sealed and 
directed, as the Constitution requires, to the Secretary of the 
United States in Congress assembled, that the Senators and 
Representatives should convene at the Time and Place assigned; 

458 


Appendix II 


459 


that the Senators should appoint a President of the Senate, for 
the sole Purpose of receiving, opening and counting the Votes 
for President; and, that after he shall be chosen, the Congress, 
together with the President, should, without Delay, proceed to 
execute this Constitution. 

By the Unanimous Order of the Convention 

Go Washington Presidt 


W. Jackson Secretary. 


/ 


, % 

APPENDIX III ' ' 

THE FIRST SEVENTEEN AMENDMENTS TO THE 

CONSTITUTION 

1. Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging 
the freedom of speech, or of the press; or the right of the people 
peaceably to assemble, and to petition the Government for a 
redress of grievances. 

2. A well regulated Militia, being necessary to the security of 
a free State, the right of the people to keep and bear Arms, 
shall not be infringed. 

3. No Soldier shall, in time of peace be quartered in any 
house, without the consent of the Owner, nor in time of war, 
but in a manner to be prescribed by law. 

4. The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures, shall not be violated, and no Warrants shall issue, but 
upon probable cause, supported by Oath or affirmation, and 
particularly describing the place to be searched, and the persons 
or things to be seized. 

5. No person shall be held to answer for a capital, or other¬ 
wise infamous crime, unless on a presentment or indictment of a 
Grand Jury, except in cases arising in the land or naval forces, 
or in the Militia, when in actual service in time of War or 
public danger; nor shall any person be subject for the same 
offence to be twice put in jeopardy of life or limb; nor shall 
be compelled in any criminal case to be a witness against himself, 
nor to be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for public 
use, without just compensation. 

6. In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of the 
State and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, 
and to be informed of the nature and cause of the accusation; 

460 


Appendix III 


461 

to be confronted with the witnesses against him; to have com¬ 
pulsory process for obtaining witnesses in his favor, and to 
have the Assistance of Counsel for his defence. 

7. In Suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall be 
preserved, and no fact tried by a jury, shall be otherwise re¬ 
examined in any Court of the United States, than according to 
the rules of the common law. 

8. Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

9. The enumeration in the Constitution, of certain rights, 
shall not be construed to deny or disparage others retained by 
the people. 

10. The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people. 

11. The Judicial power of the United States shall not be con¬ 
strued to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by Citizens of an¬ 
other State, or by Citizens or Subjects of any Foreign State. 

12. The Electors shall meet in their respective states, and vote 
by ballot for President and Vice-President, one of whom, at 
least, shall not be an inhabitant of the same state with them¬ 
selves; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice- 
President, and they shall make distinct lists of all persons voted 
for as President, and of all persons voted for as Vice-President, 
and of the number of votes for each, which lists they shall sign 
and certify, and transmit sealed to the seat of the government 
of the United States directed to the President of the Senate;— 
The President of the Senate shall, in the presence of the Senate 
and House of Representatives, open all the certificates and the 
votes shall then be counted;—'The person having the greatest 
number of votes for President, shall be the 'President, if such 
number be a majority of the whole number of Electors ap¬ 
pointed; and if no person have such majority, then from the 
persons having the highest numbers not exceeding three on the 
list of those voted for as President, the House of Representa¬ 
tives shall choose immediately, by ballot, the President. But in 
choosing the President, the votes shall be taken by states, the 
representation from each state having one vote; a quorum for 


402 


Appendix III 


this purpose shall consist of a member or members from two- 
thirds of the states, and a majority of all the states shall be 
necessary to a choice. And if the House of Representatives 
shall not choose a President whenever the right of choice shall 
devolve upon them, before the fourth day of March next fol¬ 
lowing, then the Vice-President shall act as President, as in the 
case of death or other constitutional disability of the President.— 
The person having the greatest number of votes as Vice-Presi¬ 
dent, shall be the Vice-President, if such number be a majority 
of the whole number of Electors appointed, and if no person 
have a majority, then from the two highest numbers on the list, 
the Senate shall choose the Vice-President; a quorum for the 
purpose shall consist of two-thirds of the whole number of 
Senators, and a majority of the whole number shall be necessary 
to a choice. But no person constitutionally ineligible to the 
office of President shall be eligible to that of Vice-President of 
the United States. 

13. Section i. Neither slavery nor involuntary servitude, ex¬ 
cept as a punishment for crime whereof the party shall have been 
duly convicted, shall exist within the United States, or any place 
subject to their jurisdiction. Section 2. Congress shall have 
power to enforce this article by appropriate legislation. 

14. Section l. All persons born or naturalized in the United 
States, and subject to the jurisdiction, thereof, are citizens of 
the United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States; nor 
shall any State deprive any person of life, liberty, or property, 
without due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the 
choice of electors for President and Vice President of the 
United States, Representatives in Congress, the Executive and 
Judicial officers of a State, or the members of the Legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age, and citizens of the United States, 
or in any way abridged, except for participation in rebellion, or 
other crime, the basis of representation therein shall be reduced 


Appendix III 


463 

in the proportion which the number of such male citizens shall 
bear to the whole number of male citizens twenty-one years of 
age in such State. 

Section 3. No person shall be a Senator or Representative in 
Congress, or elector of President and Vice President, or hold 
any office, civil or military, under the United States, or under 
any State, who, having previously taken an oath, as a member 
of Congress, or as an officer of the United States, or as a mem¬ 
ber of any State legislature, or as an executive or judicial officer 
of any State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the same, 
or given aid or comfort to the enemies thereof. But Congress 
may by a vote of two-thirds of each House, remove such dis¬ 
ability. 

Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of 
pensions and bounties for services in suppressing insurrection or 
rebellion, shall not be questioned. But neither the United States 
nor any State shall assume or pay any debt or obligation in¬ 
curred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave; 
but all such debts, obligations and claims shall be held illegal 
and void. 

Section 5. The Congress shall have power to enforce, by ap¬ 
propriate legislation, the provisions of this article. 

15. Section i. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States or by 
any State on account of race, color, or previous condition of 
servitude— 

Section 2. The Congress shall have power to enforce this 
article by appropriate legislation— 

16. The Congress shall have power to lay and collect taxes 
on incomes, from whatever source derived, without apportion¬ 
ment among the several States, and without regard to any census 
or enumjeration. 

17. The Senate of the United States shall be composed of 
two Senators from each State, elected by the people thereof, for 
six years; and each Senator shall have one vote. The electors 
in each State shall have the qualifications requisite for electors 
of the most numerous branch of the State legislatures. 

When vacancies happen in the representation of any State in 


Appendix III 


464 

the Senate, the executive authority of such State shall issue 
writs of election to fill such vacancies: Provided, That the legis¬ 
lature of any State may empower the executive thereof to make 
temporary appointments until the people fill the vacancies by 
election as the legislature may direct. 

This amendment shall not be so construed as to afifect the 
election or term of any Senator chosen before it becomes valid 
as part of the Constitution. 




APPENDIX IV 

THE ALLEGED EIGHTEENTH AMENDMENT 

Section i. After one year from the ratification of this article 
the manufacture, sale, or transportation of intoxicating liquors 
within, the importation thereof into, or the exportation thereof 
from the United States and all territory subject to the juris¬ 
diction thereof for beverage purposes is hereby prohibited. 

Sec. 2. The Congress and the several States shall have con¬ 
current power to enforce this article by appropriate legislation. 

Sec. 3. This article shall be inoperative unless it shall have 
been ratified as an amendment to the Constitution by the legis¬ 
latures of the several States, as provided in the Constitution, 
within seven years from the date of the submission hereof to the 
States by the Congress. 


465 


APPENDIX V 


THE NINETEENTH AMENDMENT 

The right of citizens of the United States to vote shall not be 
" denied or abridged by the United States or by any State on ac¬ 
count of sex. 

Congress shall have power to enforce this article by appro¬ 
priate legislation. 


466 



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